# Lloyd v. Jefferson

> District Court, D. Delaware · May 12, 1999 · 53 F. Supp. 2d 643

URL: https://www.frixlaw.com/law-library/cases/2289722

## Case

- **Full name:** William LLOYD and Kathaleen McCormick, Plaintiffs, v. Richard JEFFERSON, William McDaniel, and William Hill, Defendants
- **Court:** District Court, D. Delaware
- **Decided:** May 12, 1999
- **Citations:** 53 F. Supp. 2d 643; 1999 U.S. Dist. LEXIS 7411; 1999 WL 305024
- **Precedential status:** Published
- **Opinion:** Opinion by Sleet
- **Judges:** Sleet
- **Cited by:** 15 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2289722

## How later opinions describe it (automated extraction)

- holding that “[ijndeed, there can be no doubt that [the individual] possessed a clearly established right to be free from unreasonable seizure and excessive force[ ]” and at the time of the incident “it was clearly established Third Circuit law that the objective reasonablenes…
- holding that plaintiffs physical injuries were the direct result of defendant’s gripping her arm, not the “physical phenomena accompanying emotional disturbance” caused by plaintiffs encounter with defendant

## Opinion text

OPINION
SLEET, District Judge.
INTRODUCTION
Kathaleen McCormick (“McCormick” or “plaintiff’) was a contract employee with the Department of Public Instruction of the State of Delaware (“DPI”). Sgt. N. Richard Jefferson (“Jefferson”), Capt. William McDaniel (“McDaniel”), and Chief William Hill (“Hill”) (collectively “defendants”) are employees of the Department of Natural Resources and Environmental Control of the State of Delaware (“DNREC”).
Plaintiff also served as a corporate officer for an entity that held leases in a mobile home park in Sussex County, Delaware. A complaint was apparently received concerning an open septic system at the mobile home park. An investigation was initiated by defendant Jefferson. It was in this regard that McCormick and Jefferson had their initial contact. This contact did not go especially well, and to understate what will later become apparent, matters went increasingly downhill from there.
*650
Indeed, Jefferson’s supervisor, defendant McDaniel, initiated a second contact with plaintiff which lead to additional contacts between McDaniel’s supervisor, defendant Hill, and plaintiffs supervisor, Valerie Woodruff. The
ultimate
contact occurred in the rear parking area of the Bridgeville Police Department in Bridge-ville, Delaware, when — as a result of an incident related to the mobile home park and DNREC’s regulatory responsibilities but unrelated to the septic system complaint — Jefferson was in the process of effecting the arrest of McCormick’s father, William Lloyd.
1
This action stems in part from plaintiffs contention that during that arrest, Jefferson physically accosted her in order to prevent her from using a video camera to record the event and to prevent her from entering into the police station with her father. Plaintiff asserts that all the defendants conspired to have defendant Jefferson assault and detain her. Plaintiff also contends that, as a result of another conspiracy among the defendants, she lost her contract with the DPI.
Plaintiff has filed this action seeking from defendants, among other forms of relief, compensatory and punitive damages. Plaintiff alleges that, during their confrontation, Jefferson unlawfully seized her and, in the process, used excessive force in violation of 42 U.S.C. § 1983
2
pursuant to rights secured by the Fourth and Fourteenth Amendments
3
of the United States Constitution. In addition, plaintiff alleges that defendants violated 42 U.S.C. §§ 1985
4
and 1986
5
by conspiring to deprive her of equal protection of the law based upon her gender and to deprive her of rights guaranteed by the First Amendment of the United States Constitution. Plaintiff also claims violations of various rights secured by state law. The court has jurisdiction over the federal statutory and constitutional claims pursuant to 28 U.S.C. §§ 1331 and 1343. The court has supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367 .
*651
The court currently has before it defendants’ motion for summary judgment on all of plaintiffs claims. Because the court finds that there are genuine issues of material fact regarding certain of plaintiffs claims, defendants’ motion will be denied in part and granted in part.
THE FACTS
I. Facts Related to Plaintiffs §§ 1985 and 1986, First Amendment, and State Law Claims
From 1988 to 1997, McCormick was under contract with the DPI as an Education Associate. She also served as an officer in a corporation that held the in-fees of ninety-nine year leases at a mobile home park located in Sussex County, Delaware. In August 1996, defendant Jefferson, an Environmental Protection Officer with DNREC, while investigating a complaint regarding an open septic system at the mobile home park, left his business card at the park’s office. When plaintiff responded via telephone, Jefferson told her that he would rather speak to a man. When McCormick made it clear that he would have to speak with her regarding the matter, Jefferson told her about the complaint and indicated that the septic system would have to be repaired. Plaintiff assured him that the problem would be fixed. Jefferson informed McCormick that he would need to meet with her at the park to discuss the matter. Plaintiff suggested a meeting time for the following weekend. This was too late for Jefferson so plaintiff agreed to meet with him at her workplace during a break, on Monday, August 26, 1996. At the appointed time, Jefferson appeared at plaintiffs job and served citations on her for violations in connection with the mobile home park’s septic system.
On September 9, 1996, Jefferson’s supervisor, defendant McDaniel, contacted plaintiff at work via the State’s e-mail system. He asked her to respond by e-mail to set up a time to discuss the situation at the mobile home park. The next day plaintiff e-mailed McDaniel that she preferred to speak with McDaniel’s supervisor, defendant Hill, or Hill’s supervisor. That same day, McDaniel sent another email to plaintiff questioning her further regarding the situation at the mobile home park.
Rather than responding further, later that day, while still at work, plaintiff sent an e-mail message to several DNREC employees, including the Cabinet Secretary of DNREC, Director of Water Resources, Director of Air and Waste Management (the immediate supervisor of McDaniel’s supervisor, defendant Hill), and McDaniel. In this message, plaintiff requested cooperation from the agency regarding the septic system issues at the mobile home park. McCormick stated that in her opinion the state had created these issues by approving ninety-nine year leases without a plan for management at the state level, thus causing conflicting decisions between the state agencies. Plaintiff contended that this issue was currently being addressed in Superior Court. McCormick also complained about Jefferson’s stated desire to deal with a man which she viewed as discriminatory.
Still later that day, McDaniel contacted her again, this time by telephone, to discuss the problems with the septic system at the mobile home park. The following day, the 11th at 8:28 a.m., McDaniel sent an e-mail message to the Director of Water Resources and sent a copy to McDaniel’s supervisor, defendant Hill. Referring to plaintiffs electronic mail message from the previous day to the Secretary and others, McDaniel stated, “Mrs. McCormick needs to be reeled in!” In addition, McDaniel requested a meeting with the Director of Water Resources on this matter. The Director responded later that evening saying, “[wjhenever you’re ready.” Eleven minutes after sending this message, McDaniel sent another to Hill, with a copy to Jefferson, allegedly disparaging McCormick and asserting her use of state time to handle personal business.
*652
On the morning of the 11th, Hill spoke with McCormick’s supervisor at the DPI by phone and told her that McCormick had sent several e-mail messages to DNREC personnel over a period of a few days. McCormick notes that, at the time of Hill’s discussion with her supervisor, she actually had sent a total of three email messages — two of which were responses solicited by McDaniel on a single day.
Later on the morning of September 11th, McCormick’s supervisor, Valerie Woodruff, and Hill met in his office. Reportedly, Hill told plaintiffs supervisor that plaintiff had sent e-mail messages and met with DNREC staff during the work day. Hill also stated that he had seen plaintiff in a state vehicle at the Justice of the Peace Court in Georgetown — an accusation which plaintiff denies.
Later that day, plaintiffs supervisor met with McDaniel. During the meeting, McDaniel said that he had seen plaintiff on August 23 at the Justice of the Peace Court in Georgetown between 10:15 a.m. and 10:30 a.m. Further, McDaniel told Woodruff that when he left the Court at 11:00 a.m. or 11:15 a.m., plaintiff was still there. Reportedly, this assertion was later recanted by McDaniel, while testifying at plaintiffs contract renewal hearing. At this hearing regarding the allegations against plaintiff, McDaniel testified that he had seen plaintiff around lunch time, and, when he had left the Justice of the Peace Court, he had not noticed whether or not she was still there.
On Friday, September 13th, plaintiff gave McDaniel her personal e-mail address and asked him to send any further e-mail messages to that address at her home. Nevertheless, several hours later, McDaniel sent another e-mail message to plaintiff at work. Plaintiff responded and asked whether McDaniel had received her home e-mail address.
Further on September 11th, defendant Jefferson spoke with plaintiffs supervisor by telephone and said that plaintiff had asked for a meeting with him. Apparently, it was Jefferson who requested the original meeting. At his deposition, he admitted that he may have told McCormick that he wanted to meet with her the next week at the park. Jefferson also told plaintiffs supervisor that when plaintiff met with him at the DPI offices, she brought a box of documents to the meeting. Plaintiff, however, testified that she did not bring a box of papers. Finally, Jefferson allegedly told plaintiffs supervisor that he had spent a total of an hour at the DPI offices meeting with plaintiff. Plaintiff testified that her entire meeting time with Jefferson was comparable to a coffee break — approximately 20 minutes.
Prior to the loss of her DPI contract, plaintiffs qualifications for her position as well as her job performance were not an issue. Yet, as a result of the information provided by defendants to her supervisor, plaintiff was informed by letter from the State Board of Education, dated February 28, 1997, that her contract with the DPI would not be renewed. In the section of the letter that sets forth the “circumstances that support the recommendation,” the letter states that “[t]he incidents described were brought to the Department’s attention during the fall by representatives of another state agency [, and that] [thereafter, an investigation was performed.” The letter stated that “the proposal to not renew is based on, but not limited to [plaintiffs] misconduct in office, incompetency or willful neglect of duty, performing personal business on state time, improper use of a state electronic system, and falsification of state documents.”
Upon the issuance of this letter of non-renewal, plaintiff was offered and accepted “the opportunity to respond to [the] charges before a hearing officer appointed by the Board.” The Board adopted the hearing officer’s recommendation of termination. Plaintiff appealed this decision to the Superior Court of the State of Dela
*653
ware in
McCormick v. Board of Education for the State of Delaware,
C.A. No. 97A-10-003, 1998 WL 960732 (Del.Super. July 22, 1998). In deciding the issue of “whether the evidence [was] legally adequate to support the Board’s factual findings,” the court held that “[s]ubstantial evidence exists to support a finding that the Department had ‘just cause’ to terminate McCormick because she violated the rules set out by it.”
Id.
at *12 . Moreover, the court held that this “evidence fully justifies the hearing officer’s refusal to find that McCormick was subject to disparate treatment.”
Id.
at *13 . Though it found that there was just cause to decide not to renew McCormick’s employment contract, the court held that because the Board failed to comply with the statutory time limits for giving notice, the attempt to terminate the contract failed. Consequently, the contract termination date was extended by statute for one year.
Id.
II. Facts Related to Plaintiffs § 1983 and State Law Claims
On Friday, September 20, 1996, plaintiffs father, William Lloyd, was arrested by defendant Jefferson.
6
McCormick, anticipating the processing of her father at the police station in Bridgeville, Delaware, which also housed a DNREC field office, proceeded there to await the arrival of Jefferson and her father. Plaintiff pulled a video camera from her car that she used in her work, hoping this might deter Jefferson from being as rough with her father as she claims he was at the time of the initial arrest.
When Jefferson arrived with Lloyd, McCormick walked toward the back of the station and started to cross over to ask if she would be allowed to go into the building with her father. According to McCormick, Jefferson approached her, crossing over the back of the parking lot to where she was standing. At that time, he put his left hand over the lens of the video camera, grabbed plaintiffs arm with his right hand, and told her, “Get out of here.” Plaintiff responded that she wished to enter the building with her father, and Jefferson replied, “You can’t.” Three times Plaintiff contends that she said, “Don’t touch me. Don’t touch me. Take your hands off me. You are hurting me.” Nonetheless, plaintiff says that Jefferson continued to hold her arm in a tight, wrenching grip for a long period of time and that every time plaintiff said, “Don’t touch me,” he changed and tightened his grip. In addition, plaintiff alleges that Jefferson pushed her around the corner of the building and detained her without cause. She says that when she screamed, Jefferson finally let go and backed away. Plaintiff then walked around to the front of the station, entered through the front door, charged her video camera, and went back to wait at her car.
As a result of Jefferson’s actions, McCormick complains that she suffered contusions to her arm. She was treated at the emergency department of Kent General Hospital early the next morning. Notes made by the attending physician reflect that the bruised areas on McCormick’s left arm had the appearance of a hand print with a thumb print to the front and palm and finger prints to the rear and were consistent with McCormick having been grabbed with the right hand.
Jefferson contends that he told McCormick a number of times to go to the public entrance in the front of the building. Further, he asserts that she continued to advance toward the police entrance where Jefferson was attempting to proceed with
*654
the prisoner, Lloyd. Defendant claims that after McCormick was told numerous times to go to the public entrance, plaintiff continued toward the police entrance, intent on going in with her father. According to Jefferson, he finally had to place himself between plaintiff and the police entrance and approached the plaintiff. Jefferson asserts that he then placed his left hand on the video camera and his right hand on McCormick’s upper left arm, and after a few seconds, plaintiff complied by turning and proceeding towards the front entrance. During oral argument, there was a dispute as to whether or not the parking lot in question was restricted to police personnel.
STANDARD OF REVIEW
“Summary judgment is appropriate under Federal Rule of Civil Procedure 56(c) when the moving party establishes that there is no genuine issue of material fact that can be resolved at trial and that the moving party is entitled to judgment as a matter of law.”
House v. New Castle County,
824 F.Supp. 477, 481 (citing
Celotex Corp. v. Catrett,
477 U.S. 317 , 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986)). In evaluating whether or not there are any genuine issues of material fact, “[mjateriality is determined by the substantive law that governs the case.”
Id.
(citing
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 , 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986)). “In this inquiry, ‘[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.’ ”
Id.
“A dispute is ‘genuine’ only if a reasonable jury could return a verdict for the nonmov-ing party.”
Id.
The moving party has the initial burden of “informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrates the absence of a genuine issue of material fact.”
Robinson v. Clemons,
987 F.Supp. 280, 283 (D.Del.1998) (quoting
Celotex,
477 U.S. at 323 , 106 S.Ct. 2548 ) (internal quotation marks omitted). After the moving party satisfies this responsibility, “the nonmoving party must go beyond the pleadings and, based on the same types of evidence, must demonstrate ‘specific facts showing that there is a genuine issue for trial,’ ”
Id.
“When considering a motion for summary judgment, the Court must ‘view all facts and inferences in the light most favorable to the party opposing the motion.’ ”
Id.
(citing
Stephens v. Kerrigan,
122 F.3d 171, 176-77 (3d Cir.1997)). Moreover, “[i]f the evidentiary record supports a reasonable inference that the ultimate facts may be drawn in favor of the responding party, then the moving party cannot obtain summary judgment.”
House,
824 F.Supp. at 481 -82 (citing
In re Japanese Elec. Prod. Antitrust Litig.,
723 F.2d 238, 258 (3d Cir.1983),
rev’d on other grounds,
475 U.S. 574 , 106 S.Ct. 1348 , 89 L.Ed.2d 538 (1986)). Put another way, “[a]ny doubts as to the existence of genuine issues of fact will be resolved against the moving party and all inferences to be drawn from the material it submits will be viewed in the light most favorable to the party opposing the motion.”
Id.
Finally, at this stage of the process, “ ‘the judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial’ ”
Lewis v. State of Delaware Dept. of Pub. Instruct.,
948 F.Supp. 352, 357 (D.Del.1996) (quoting
Anderson, 477
U.S. at 249, 106 S.Ct. 2505 ).
DISCUSSION
I. William Lloyd’s Claims
Pursuant to Fed.R.Civ.P. 41(a)(1), the parties have stipulated to a partial dismissal with prejudice of all claims of plaintiff William Lloyd.
*655
II. Claims Brought Pursuant Section 1983
In order to state a claim under § 1983, “a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.”
Barna v. City of Perth Amboy,
42 F.3d 809, 815 (3d Cir.1994) (quoting
West v. Atkins,
487 U.S. 42, 48 , 108 S.Ct. 2250 , 101 L.Ed.2d 40 (1988)). “The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.”
Id.
at 815-16 (quoting
West,
487 U.S. at 49 , 108 S.Ct. 2250 ) (internal quotation marks omitted). “It is firmly established that a defendant in a section 1983 suit acts under color of state law when he abuses the position given to him by the State.”
Id.
(citing
West,
487 U.S. at 49 , 108 S.Ct. 2250 ;
Screws v. United States,
325 U.S. 91, 111 , 65 S.Ct. 1031 , 89 L.Ed. 1495 (1945)).
In this case, there is no dispute that defendants’ actions, relating to plaintiffs § 1983 claims, were performed under color of state law. Consequently, the court will analyze plaintiffs claims according to the first element in establishing a claim under § 1983, i.e., whether plaintiff states a claim of a “violation of a right secured by the Constitution and laws of the United States.”
7
A. Fourth Amendment: Unreasonable Seizure and Excessive Force Claim
Plaintiff makes five separate claims cognizable under 42 U.S.C. § 1983 . The first of these claims is grounded in her right to be free of unreasonable seizure, as guaranteed by the Fourth Amendment of the United States Constitution. In addressing plaintiffs claim, the court must first decide whether she was seized, and, if so, did Jefferson use excessive force in the process.
“A ‘seizure’ triggering the Fourth Amendment’s protections occurs only when government actors have, ‘by means of physical force or show of authority, ... in some way restrained the liberty of a citizen[.]’ ”
Graham v. Connor,
490 U.S. 386 , 395 n. 10, 109 S.Ct. 1865 , 104 L.Ed.2d 443 (1989) (quoting
Terry v. Ohio,
392 U.S. 1 , 19 n. 16, 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968)). “The Fourth Amendment’s requirement that searches and seizures be founded upon an objective justification, governs all seizures of the person, ‘including seizures that involve only a brief detention short of traditional arrest.’”
U.S. v. Mendenhall,
446 U.S. 544, 551 , 100 S.Ct. 1870 , 64 L.Ed.2d 497 (1980) (citations omitted). “[The Supreme Court] conclude[d] that a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.”
Id.
at 554 , 100 S.Ct. 1870 . “ “Whenever an officer restrains the freedom of a person to walk away he has seized that person.’ ”
House,
824 F.Supp. at 490 (quoting
Tennessee v. Garner,
471 U.S. 1, 7 , 105 S.Ct. 1694 , 85 L.Ed.2d 1 (1985)).
In
Gallo v. City of Philadelphia,
161 F.3d 217 (3d Cir.1998), a case involving a
*656
Fourth Amendment seizure in the context of a § 1983 claim of malicious prosecution, the Court of Appeals for the Third Circuit reiterated the need to adopt “a broad approach in considering what constitutes a seizure.”
Id.
at 224. “Additionally, the Supreme Court has clarified that seizures can be of different intensities.”
Id.
at 223. Moreover, the Third Circuit stated that “Supreme Court cases have not equated a seizure with a significant deprivation of liberty.... Indeed, Supreme Court cases concerning seizure generally involve restricting an individual’s movement to a small area.”
Id.
at 224.
In the instant case, plaintiff alleges that Jefferson approached her, put his left hand over the lens of her video camera, and grabbed and continued to hold her arm in a tight wrenching grip for a long period of time. According to plaintiff, defendant’s grip tightened each time she requested that he release her. In addition, plaintiff alleges that Jefferson pushed her around the corner of the building and detained her. As noted above, defendant denies these allegations. He contends that he merely put one hand up to the video camera lens and the other on plaintiffs left arm and that she acquiesced as he directed her toward the front entrance of the station.
There is clearly a factual dispute as to what transpired between plaintiff and defendant in the parking lot. The court’s job at this stage in the proceeding is not to attempt to credit one side or the other in an attempt to resolve that dispute. 948 F.Supp. at 357 . Indeed, at summary judgment, it is the non-moving party (here the plaintiff) that is entitled to the resolution of facts and reasonable inferences in her favor.
Celotex,
477 U.S. at 323 , 106 S.Ct. 2548 . Whether plaintiff was seized is a question of material fact because a seizure is a prerequisite to a finding of Fourth Amendment based liability.
Anderson,
477 U.S. at 248 , 106 S.Ct. 2505 ;
Mellott,
161 F.3d at 124 . The dispute is genuine because there is sufficient evidence upon which a reasonable trier of fact could find for plaintiff.
House,
824 F.Supp. at 491 ;
cf. Mellott,
161 F.3d at 124-25 (in contrast, ruling in favor of defendants, as a matter of law). Specifically, should the jury credit plaintiffs version of the events, the court holds that those facts would be sufficient for the jury to conclude that plaintiff was seized.
Id.
In other words, the resolution of this dispute will determine whether or not plaintiff was seized. This is a job that belongs to a jury.
Id.
Turning the analysis from the issue of whether plaintiff was seized to whether Jefferson utilized excessive force in the course of that seizure, “[i]n order to prevail on a Fourth Amendment excessive force claim, a plaintiff must demonstrate that the defendant’s use of force was not ‘objectively reasonable.’ ”
Mellott,
161 F.3d at 122 (citing
Ghraham,
490 U.S. at 397 , 109 S.Ct. 1865 ). A determination of whether the
force
applied in this instance was objectively reasonable requires the examination of a variety of factors “including severity of the crime at issue, whether the suspect pose[d] an immediate threat to the safety of the officers or others, and whether he [was] actively resisting arrest or attempting to evade arrest by flight.”
Id.
Also, “it is important to consider how many individuals the officers confronted and whether ‘the physical force applied was of such an extent as to lead to injury.’ ”
Id.
(quoting
Sharrar v. Felsing,
128 F.3d 810, 822 (3d Cir.1997)). “Other relevant factors include the possibility that the persons subject to the police action [were] themselves violent or dangerous, the duration of the action, whether the action [took] place in the context of effecting an arrest, the possibility that the suspect may [have been] armed, and the number of persons with whom the police officer ... [had to] contend at one time.”
Sharrar,
128 F.3d at 822 .
Looking initially at the severity of the crime, note must first be taken that plaintiff was not at the outset the focus of the defendant’s arrest efforts. It was plain
*657
tiffs father, William Lloyd, who defendant was taking into the station for processing for a non-violent offense. Plaintiff was, at first, only a bystander who sought to record the events attendant to her father’s arrest — or, at least, sought to appear to be recording these events. When she became engaged with defendant, it was not as the result of any threat plaintiff or Lloyd posed to the officer’s safety but rather his efforts apparently designed to prevent plaintiffs use of her video camera and/or her entry into the station through the back door. The arrestee, plaintiffs father, appeared to be in defendant’s control and making no attempt to resist or flee.
Moreover, there is no evidence that Lloyd or plaintiff were violent or dangerous or that either individual might have been armed with anything more than a camera. And, while they outnumbered defendant two to one and while one’s own arrest and the witnessing of such an event by a loved one might be emotionally charged, the record reflects no behavior by either Lloyd or plaintiff that might have been reasonably interpreted by the defendant as threatening to his or his prisoner’s safety. Finally, plaintiff contends that she suffered physical injury, a severely bruised right arm, as a direct result of the application of a “wrenching” grip by defendant. Defendant contests this allegation but, as previously noted, at the summary judgment stage the court must accept the non-moving party’s contention as true.
The court is mindful of the teaching of the Supreme Court in
Graham
that not every injury sustained by a citizen during an encounter with law enforcement officials gives rise to a constitutional claim.
House,
824 F.Supp. at 491 (citing
Troublefield,
789 F.Supp. at 166;
Graham,
490 U.S. at 396 , 109 S.Ct. 1865 ). It is also clear that courts should “keep in mind that a threat that may seem insignificant to us in the security of our chambers may appear more substantial to a reasonable officer whose own life or safety is at stake.”
Mellott,
161 F.3d at 122 . Nevertheless, in sum, the absence of any threatening behavior, the control defendant exercised over the situation confronting him, and the fact that plaintiff sustained physical injury directly at his hands, make it inappropriate at this time to find that the use of force under the circumstances was objectively reasonable.
In addition, the court cannot find under these facts that the officer found himself in a situation requiring “split-second judgments.” Although, some tension was undoubtedly presented by the situation and already existed between plaintiff and Jefferson — plaintiff sought to photograph defendant’s actions during the arrest of her father and the earlier contacts between the two — 'the court does not find that the circumstances confronting the officer in the parking lot were so “uncertain” or “rapidly evolving” that the “calculus of reasonableness” as to the amount of force that was required would weigh in defendant’s favor.
Id.
Indeed, plaintiff was known to defendant. At least, he knew her to be a fellow state employee. This should have removed a good bit of the uncertainty from the calculus.
Given this state of the record, the court is not prepared to say that defendant Jefferson’s conduct was objectively reasonable. Therefore, the court will not find in favor of defendant Jefferson as a matter of law regarding plaintiffs Fourth Amendment excessive force claim. Defendant Jefferson has not convinced the court that there are sufficient undisputed facts in the record upon which the court could base such a finding. As such, the entry of summary judgment for defendant Jefferson regarding plaintiffs excessive force claim must be denied.
B. Fourteenth Amendment: Substantive “Liberty” Guarantees of Due Process Claim
Next, McCormick’s § 1983 claim is grounded in her right to be “free from State-occasioned violence and injury to her bodily integrity, as provided by the
*658
substantive ‘liberty’ guarantees of due process.” “In addressing an excessive force claim brought under § 1983, analysis begins by identifying the specific constitutional right allegedly infringed by the challenged application of force.... The validity of the claim must then be judged by reference to the specific constitutional standard which governs that right, rather than to some generalized ‘excessive force’ standard.”
8
Graham, 490 U.S. at 394 , 109 S.Ct. 1865 .
Moreover, the Supreme Court stated that
Graham
does not hold that all constitutional claims relating to physically abusive government conduct must arise under either the Fourth or Eighth Amendments; rather,
Graham
simply requires that if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process.
County of Sacramento v. Lewis,
523 U.S. 833 , -, 118 S.Ct. 1708, 1715 , 140 L.Ed.2d 1043 (1998) (quoting
United States v. Lanier,
520 U.S. 259 , 272 n. 7, 117 S.Ct. 1219 , 137 L.Ed.2d 432 (1997)). Consequently, a substantive due process analysis would be inappropriate only if the claim was ‘covered by’ the Fourth Amendment.
Id.
Since McCormick has alleged a violation of her substantive due process rights under the Fourteenth Amendment on the grounds of alleged state-occasioned violence to her person without alleging a seizure, this claim is not “covered by” the Fourth Amendment, and, thus, this claim will be analyzed according to the substantive due process approach and its “shocks the conscience” standard in which “only the most egregious [executive] official conduct can be said to be ‘arbitrary in the constitutional sense.’ ”
Id.
at 1716 (1998) (quoting
Collins v. Harker Heights,
503 U.S. 115 , 129 and 126, 112 S.Ct. 1061 , 117 L.Ed.2d 261 (1992)). “[C]onduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level.”
Id.
at 1718. The Supreme Court’s “concern with preserving the constitutional proportions of substantive due process demands an exact analysis of circumstances before any abuse of power is condemned as conscience-shocking.”
Id.
at 1718-19.
In
Lewis,
the Supreme Court held that “high-speed chases with no intent to harm suspects physically or to worsen their legal plight do not give rise to liability under the Fourteenth Amendment, redressible by an action under § 1983.”
Id.
at 1720. There, the Supreme Court applied a “middle range” level of culpability to the police action in that case.
Id.
at 1718. The range of culpability standards cognizable under the rubric of substantive due process starts on the low end somewhere above negligence, which is “categorically beneath the threshold of constitutional due process;” extends through mid-range culpability which includes in some circumstances recklessness, gross negligence, and
*659
deliberate indifference; and culminates at the high end with malicious, sadistic intent.
Id.
at 1718-20. According to
Lewis,
the applicable standard to be met before the defendant’s conduct can be said to shock the conscience is heightened as the situation intensifies or is deemed an emergency, requires judgment on the spot with little opportunity to contemplate ones actions, and entails countervailing governmental interests.
Id.
In the instant case, plaintiff asserts that Jefferson’s attack on her outside of the Bridgeville Police Station was unprovoked, unjustified, and unreasonable. Nevertheless, plaintiff has not produced sufficient evidence to state a substantive due process violation according to the shocks the conscience standard. Plaintiff admits to the chaotic, rapidly evolving nature of the situation. Moreover, she admits that Jefferson’s actions took place during the lawful arrest of her father. Consequently, defendant’s actions cannot be said to fit within the category of “the exercise of power without any reasonable justification in the service of a legitimate governmental objective.”
Id.
at 1716.
The Courts recognizes that “[s]ubstantive due process is based on ‘the right to be free of state intrusions into realms of personal privacy and bodily security through means so brutal, demeaning, and harmful as literally to shock the conscience of a court.’ ”
Metcalf v. Long,
615 F.Supp. 1108 , 1119 n. 12 (D.Del.1985) (quoting
Hall v. Tawney,
621 F.2d 607, 613 (4th Cir.1980)). Moreover, within the rubric of substantive due process, “[o]ne right which has been deemed ‘fundamental’ is the right of individuals to be free from treatment by law enforcement officers that ‘shocks the conscience.’ ”
Id.
at 1120 (citing
Rochin v. California,
342 U.S. 165, 172 , 72 S.Ct. 205 , 96 L.Ed. 183 (1952)).
Nevertheless, “the constitutional protection under substantive due process is not coextensive with the common law action for assault and battery.”
Id.
at 1121. As the court in
Metcalf v. Long
recognized, “this district has found repeatedly in cases involving allegations of excessive force by police officers, a mere assault and battery does not rise to the level of a constitutional violation.”
Id.
(citations omitted). Beyond an intentional tort, the plaintiff “must prove acts which amount to shocking or brutal conduct.”
Id.
(citing
Davidson v. Dixon,
386 F.Supp. 482, 488 (D.Del.1974),
aff'd mem.,
529 F.2d 511 (3d Cir.1975)).
Metcalf
involved a detainee who experienced police violence after he had been placed under arrest, and thus the court analyzed his excessive force claim under the Fourteenth Amendment. There the court reasoned that “even assuming that there was no cause for this attack ... [e]ven [plaintiffs] version of the incident indicates that it was a brief skirmish giving rise to minor injuries.”
Id.
Metcalf had suffered “a whiplash type neck injury and a pinched nerve in his right wrist.”
Id.
Similarly, McCormick has established evidence that evinces an alleged assault and battery by Jefferson. This court, like others confronted with this issue, is “reluctant to expand the concept of substantive due process.”
Lewis,
118 S.Ct. at 1714 (quoting
Collins,
503 U.S. at 125 , 112 S.Ct. 1061 )). Moreover, “the Fourteenth Amendment is not a ‘font of tort law to be superimposed upon whatever systems may already be administered by the States.’ ”
Id.
at 1718 (quoting
Paul v. Davis,
424 U.S. 693, 701 , 96 S.Ct. 1155 , 47 L.Ed.2d 405 (1976)). Therefore, the court finds that Jefferson’s actions in these circumstances did not violate McCormick’s Fourteenth Amendment substantive due process rights. Consequently, defendants motion for summary judgement regarding this claim is granted.
C. Fourteenth Amendment: “Liberty and Property Guarantees of Due Process” Claim
Next, among McCormick’s § 1983 claims, plaintiff contends that defendants interfered with her contractual relationship with her employer by providing false
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and damaging information to her supervisor, thereby violating plaintiffs right “to be free from injury to her reputation and from interference with her contractual relationships, as guaranteed by the liberty and property guarantees of due process.”
9
Plaintiff asserts that on September 11, 1996, Hill, McDaniel, and Jefferson all spoke with plaintiffs supervisor at the DPI. Plaintiff contends that “an obvious impetus for [defendants’ actions was [plaintiff’s complaint on September 10, 1996 to upper-level officials at DNREC about her treatment by Jefferson.” She lists specific instances where defendants allegedly provided false information, including instances where plaintiff alleges that the defendants changed their story when under oath. Plaintiff asserts that “[d]efendants as State officials, used their influence with another State official who directly supervised [plaintiff] to secure the termination of [her] employment based upon defamatory statements.” In response, defendants argue that plaintiff has failed to demonstrate or indicate that the statements they made to plaintiffs former supervisor were in any way “material or defamatory.”
1.) Fourteenth Amendment Liberty Interest in Reputation Claim
In
Morris v. Board of Education of the Laurel School District,
401 F.Supp. 188, 210 (D.Del.1975), the district court found that the plaintiffs Fourteenth Amendment liberty interest was implicated by her discharge from her position as a nontenured Delaware school teacher “for persistent insubordination.” The court explained that “[w]hile a teacher’s interest in a particular teaching job does not constitute a liberty interest, a teacher does have an interest in her ability to pursue her teaching career which is protected by the Due Process Clause.”
Id.
Moreover, “a state cannot foreclose a range of employment opportunities in a manner that contravenes due process.”
Id.
(citing
Board of Regents v. Roth,
408 U.S. 564 , 92 S.Ct. 2701 , 33 L.Ed.2d 548 (1972)). After receiving testimony at trial from Board members and a professional in the field of teacher placement in Delaware and vicinity, confirming the potential damaging effect on future placement of non-renewal for this reason, the
Morris
court concluded that the plaintiff “had a liberty interest of which she could not be deprived without being accorded procedural and substantive due process.”
Id.
at 211 .
“The Supreme Court, in the seminal case of
Wisconsin v. Constantineau,
400 U.S. 433 , 91 S.Ct. 507 , 27 L.Ed.2d 515 (1971), recognized that an individual has a protectable interest in reputation.”
Ersek
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v. Township of Springfield,
102 F.3d 79, 83 (3d Cir.1996). “It stated that “where a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.’ ”
Id.
(quoting
Wisconsin,
400 U.S. at 437 , 91 S.Ct. 507 ). In the case of
Paul v. Davis,
the Supreme Court held that the last sentence “referred to the fact that the governmental action taken in that case deprived the individual of a right previously held under state law....” 424 U.S. at 708 , 96 S.Ct. 1155 . Moreover, the Court held that “[i]t is clear that to make out a claim for a violation of a liberty interest in reputation a plaintiff must show a stigma to his reputation plus some concomitant infringement of a protected right or interest.”
Ersek,
102 F.3d at 83 n. 5 (citing
Paul,
424 U.S. at 701, 709 , 96 S.Ct. 1155 ).
“For government action to infringe the ‘reputation, honor, or integrity’ of an individual, that government action first must involve publication that is substantially and materially false.”
Id.
at 83-84 (citations omitted). “[T]he disputed or false statements must harm the plaintiff.”
Id.
at 84. “The principal relief to which an individual is entitled should the government’s stigmatizing comments rise to the level of a due process violation is a hearing to clear his name.”
Id.
In the instant case, plaintiffs claim of a violation of her liberty interest in her reputation is accompanied by a concomitant infringement of an independent right protected by the due process clause, i.e., the extinguishment of her property right in her employment, a right provided by state law.
Ersek,
102 F.3d at 83 n. 5. Notwithstanding these considerations, the court finds that McCormick has already received the process due to her. As a result of the contract renewal hearing and the appeal to the Superior Court, plaintiff has had the opportunity to tell her side of the story and refute the charges against her in an effort to clear her name.
Roth,
408 U.S. at 573 n. 12, 92 S.Ct. 2701 . Additionally, plaintiff has received damages by way of the Superior Court judgment for violations of her procedural due process rights during the contract hearing process. Therefore, defendants’ motion for summary judgment regarding plaintiffs liberty interest Fourteenth Amendment due process claim is granted.
2) Fourteenth Amendment Property Interest Claim
In the case of
Kelly v. Borough of Sayreville, New Jersey,
107 F.3d 1073, 1076 (3d Cir.1997), the plaintiff alleged in his complaint “damage to his liberty interest in his reputation and his property interest in his employment” in violation of the Fourteenth Amendment. The Court of Appeals for the Third Circuit explained that “[t]o establish a claim under 42 U.S.C. § 1983 , a plaintiff must demonstrate a violation of a right secured by the Constitution and the laws of the United States and that the alleged deprivation was committed by a person acting under color of state law.”
Id.
at 1077 (quoting
Mark v. Borough of Hatboro,
51 F.3d 1137, 1141 (3d Cir.1995) (internal quotation marks omitted)). In the instant case, it is undisputed that defendants acted under color of state law, thus the issue is whether defendants actions deprived plaintiff of a property interest guaranteed by the Constitution.
Additionally, McCormick must establish that she had a constitutionally protected interest in her continued employment at the DPI in order to make out a due process claim in connection with the termination of her employment.
Walls v. City of Milford,
938 F.Supp. 1218, 1221 (D.Del.1996). “Constitutionally protected property interests are created and defined by an independent source, such as state law.”
Id.
(citing
Roth,
408 U.S. at 567 , 92 S.Ct. 2701 ;
Brown v. Trench,
787 F.2d 167, 170 (3d Cir.1986)). “Public employees who can only be terminated for cause have been deemed to possess constitutionally protected property interests in their continued employment.”
Id.
(citing
Richardson v.
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Felix,
856 F.2d 505, 509 (3d Cir.1988);
Brown,
787 F.2d at 171 ;
Dixon v. Mayor and Council of Wilmington,
514 F.Supp. 250, 253 (D.Del.1981)). “A public employee with a constitutionally protected interest in his continued employment cannot be denied this interest without substantive and procedural due process.”
Id.
at 1222 (citing
Cleveland Bd. of Educ. v. Loudermill,
470 U.S. 532, 538 , 105 S.Ct. 1487 , 84 L.Ed.2d 494 (1985)).
In the instant case, Delaware law provided plaintiffs property interest in her employment at the DPI via 14
Del.C.
§ 121(4).
10
Notwithstanding a public employee possessing a constitutionally protected property rights in her employment, the Court of Appeals for the Third Circuit explained that in order to state a claim for deprivation of a property interest in violation of the Fourteenth Amendment, the plaintiff must prove that the defendant interfered with plaintiffs employment rights by way of an “adverse employment action.”
Kelly,
107 F.3d at 1077 (citations omitted). The court stated “that the crucial question is whether the plaintiff ‘has alleged the alteration or extinguishment of some additional interest.’ ”
Id.
at 1078 (quoting
Sturm v. Clark,
835 F.2d 1009, 1013 (1987)).
From the above discussion of applicable law, one can easily discern that plaintiff possessed a property interest in her employment via state law, specifically 14
Del.C.
§ 121(4). Plaintiff asserts that defendants intended to interfere with her property right in her employment by contacting her supervisor and providing disparaging information about the plaintiff to her supervisor. Plaintiffs property interest in her position at the DPI was extinguished through non-renewal of her contract, causing her lost compensation.
Nevertheless, in
Bradley v. Pittsburgh Board of Education,
913 F.2d 1064, 1077 (3d Cir.1990), the plaintiff, a terminated public high school teacher, based his substantive due process claim attacking his termination on the grounds that the charges against him were pretexual and
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rendered by the defendants in bad faith. In that case, the plaintiff appealed his termination in state court as provided by the applicable statute. The state court ruled that the plaintiffs conduct “constituted negligence and persistent violation of school laws.”
Id.
at 1073 . In considering the plaintiffs substantive due process claim challenging his termination, the Third Circuit gave preclusive effect to the state court finding that the plaintiff was properly terminated. Given this legitimate basis for the plaintiffs termination, the Third Circuit reasoned that it could not say that “the firing was so arbitrary and capricious as to violate substantive due process.”
Id.
Likewise, in the instant case, the court finds as a matter of law that McCormick’s termination by the DPI was rationally related to a legitimate government interest, because preclusive effect must be given to the Superior Court finding that the Board adduced sufficient evidence of just cause not to renew plaintiffs contract. Therefore, defendants’ motion for summary judgment regarding plaintiffs Fourteenth Amendment substantive due process claim is granted.
D. First Amendment Retaliation Claim:
McCormick contends that “[defendants’ actions in defaming [her] and damaging her reputation were undertaken in conjunction with a violation of plaintiffs First Amendment rights.” She contends that these actions were taken in retaliation for plaintiffs exercise of her rights in complaining about defendant Jefferson’s actions to DNREC officials. Defendants counter that plaintiff has failed to establish the elements of a defamation. They argue that the content of plaintiffs electronic mail messages is not protected expression.
11
1. General Principles
“In order to prevail on a retaliation claim, the plaintiff has to prove: ‘first, that [she] engaged in a protected activity; second, that the Government ... responded with retaliation; and third that [her] protected activity was the cause of the Government’s retaliation.”
Rappa v. Hollins,
991 F.Supp. 367, 374 (D.Del.1997) (citing
Anderson v. Davila,
125 F.3d 148, 160 (3d Cir.1997)). “The burden is on the plaintiff to show that [her] conduct was constitutionally protected.”
Id.
at 374 n. 14. (citing
Mt. Healthy City Sch. Dist. of Educ. v. Doyle,
429 U.S. 274, 287 , 97 S.Ct. 568 , 50 L.Ed.2d 471 (1977)). “In addition, in order to establish causality, the plaintiff must demonstrate the conduct was a ‘substantial’ or ‘motivating’ factor in the alleged retaliatory act.”
Id.
The first inquiry, whether plaintiffs speech is protected by the First Amendment, is a question of law.
Azzaro v. County of Allegheny,
110 F.3d 968, 975 (3d Cir.1997) (citing
Watters v. City of Philadelphia,
55 F.3d 886, 892 (3d Cir.1995)). Two conditions must be satisfied for a public employee’s expressive conduct to be deemed constitutionally protected:
First, the employee’s conduct must address a ‘matter of public concern,’ which is to be determined by the ‘content, form, and context of a given statement, as revealed by the whole record.’ Second, the value of that expression must outweigh ‘the government’s interest in the effective and efficient fulfillment of its responsibilities to the public.’
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Id.
at 976 (quoting
Connick v. Myers,
461 U.S. 138, 147-48, 150 , 103 S.Ct. 1684 , 75 L.Ed.2d 708 (1983)). Moreover, “[a] discharged public employee is entitled to no redress if her expression is not related to a matter of public concern or, even if it is so related, if its value is outweighed by the value of permitting the government to take action promoting efficiency and effectiveness.”
Id.
Here, at summary judgment, the court then must decide if a genuine issue of material fact exists regarding (1) whether McCormick’s complaint was “a motivating factor in the decision to discharge” her and (2) whether McCormick “would have been discharged for other reasons even in the absence” of her complaint against defendant Jefferson.
Id.
at 975.
2. Matter of Public Concern
“An employee’s speech addresses a matter of public concern when it can be ‘fairly considered as relating to any matter of political, social, or other concern to the community.’ ”
Watters,
55 F.3d at 892 (citing
Holder,
987 F.2d at 195;
Connick,
461 U.S. at 146 , 103 S.Ct. 1684 ). “Speech by a public employee ‘as a citizen upon matters of public concern’ is distinguished from speech by ‘an employee upon matters of only personal interest’ for which, ‘absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior.’ ”
Id.
(citing
Connick,
461 U.S. at 147 , 103 S.Ct. 1684 ).
On the other hand, “[i]t is the value of exchanges of information and ideas relevant to self-governance that entitles public concern speech to ‘special protection.’ ”
Azzaro,
110 F.3d at 977 . “Silencing a public employee seeking to speak on a matter of public concern deprives a self-governing society of information that may be vital to informed decision-making.”
Id.
(citing
Pickering v. Board of Educ.,
391 U.S. 563, 571-72 , 88 S.Ct. 1731 , 20 L.Ed.2d 811 (1968);
Watters,
55 F.3d at 886 ). “[T]he issue is whether it is important to the process of self-governance that communications on this topic, in this form and in this context, take place.”
Id.
a.) Form, Context, and Place
“[The Third Circuit] has found public employee criticism of office internal operations a matter of public concern.”
Swineford v. Snyder County,
15 F.3d 1258, 1271 (3d Cir.1994). In this line of cases, the court makes a distinction between “speech disclosing public officials’ misfeasance” which is protected and “speech intended to air personal grievances” which is not protected.
Id.
(citing
Czurlanis v. Albanese,
721 F.2d 98, 103 (3d Cir.1983)).
“Connick
indicates that the speaker’s motive, while often a relevant part of the context of the speech, is not dispositive in determining whether a particular statement relates to a matter of public concern.”
Azzaro, 110
F.3d at 978 (citing
Rode v. Dellarciprete,
845 F.2d 1195, 1201 (3d Cir.1988)). Moreover, “[w]hile, ... an employee’s motive may be relevant to whether speech is on a matter of public concern, giving controlling significance to ‘primary purpose’ is inconsistent with the result in
Connick.” Id.
at 979.
Here the court first must analyze each of McCormick’s statements in light of the above precedent to determine whether any of these statements is protected speech. Though it is clear that her statements emanated from her personal interests, i.e., the citation concerning the condition of the septic tank at the mobile home park where she serves as a corporate officer and her perceived mistreatment by defendant Jefferson, these statements also arguably touch on matters of public concern. As indicated above, the controlling case law makes clear that McCormick’s personal interests are not dispositive of the issue of the characterization of her statements.
Azzaro,
110 F.3d at 978 (citing
Rode,
845 F.2d at 1201 ). Furthermore, like the plaintiff in
Czurlanis ,
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McCormick’s speech seems more akin to that of a concerned citizen than a disgruntled employee. 721 F.2d at 103 . It is clear from the content of her e-mail message to certain members of DNREC’s upper management that her statements expressed concern for the state policy of approving ninety-nine year leases and the ramifications of a lack of a comprehensive policy regarding such properties. In addition, the issue of allegedly discriminatory behavior by a DNREC employee, especially one whose duties involve contact with the public, touch on matters of public concern.
As stated above, it is a question of law whether plaintiffs speech is constitutionally protected. The court finds that plaintiff has satisfied the first condition for constitutional protection, i.e., that the expression address a matter of public concern. The court now turns to the second condition that must be satisfied for the speech to be given constitutional protection.
b.) Balancing Test (The Value of the Expression)
“The next step in our analysis is to conduct the balancing of interests required by
Pickering
and
Connick.” Azzaro,
110 F.3d at 980 . “On one side we weigh the public employee’s interest in speaking about a matter of public concern and the value to the community of her being free to speak on such matters.”
Id.
(citing
Green v. Philadelphia Housing Auth.,
105 F.3d 882, 885 (3d Cir.1997); Watters, 55 F.3d at 895 ;
Versarge v. Township of Clinton New Jersey,
984 F.2d 1359, 1366 (3d Cir.1993)). “Balanced against these interests is the government’s interest as an employer in promoting the efficiency of the services it performs through its employees.”
Id.
(citing
Watters,
55 F.3d at 895 ). “Only if the value of the speech, as measured by the employee’s and the public’s interests, is outweighed by the government’s interest in effective and efficient provision of services, will [the court] hold that the speech is unprotected.”
Id.
As stated above, the court must weigh McCormick’s “interest in speaking and the public’s interest in hearing,” against the interests of the State, as the public employer of both parties.
Swineford,
15 F.3d at 1272 (citing
Versarge v. Clinton,
984 F.2d 1359, 1366 (3d Cir.1993);
O’Donnell v. Yanchulis,
875 F.2d 1059 , 1061 (3d Cir.1989)). The plaintiffs speech would impair the employer’s interests where the speech:
(1) ‘impair[ed] discipline by superiors’; (2) ‘impair[ed] ... harmony among coworkers’; (3) ‘ha[d] a detrimental impact on close working relationships for which personal loyalty and confidence are necessary’; (4) ‘impede[d] the performance of the speaker’s duties’; or (5) ‘interfere[d] with the regular operation of the enterprise.’ ... These interests are referred to collectively as ‘disruption.’
Id.
(citing
Versarge,
984 F.2d at 1366 (quoting
Rankin,
483 U.S. at 388, 107 S.Ct. 2891 ) (alterations in Versarge);
Rode,
845 F.2d at 1202 ). In addition, the court must determine “whether [McCormick] knowingly or recklessly made false statements and whether her speech was motivated by animus.”
Id.
(citing
Czurlanis,
721 F.2d at 106 ).
“In Waters,
..., the [Supreme] Court decided that ‘the
potential
disruptiveness of the speech as reported was enough to outweigh whatever First Amendment value it might have had.’ ”
Watters,
55 F.3d at 896 (citing
Waters v. Churchill,
511 U.S. 661 , 114 S.Ct. 1878 , 128 L.Ed.2d 686 (1994) (emphasis added)). Therefore, in the Third Circuit, “after
Waters ,
it is no longer essential to show actual disruption, although such evidence would obviously be highly relevant.”
Id.
(citing
Jeffries v. Harleston,
52 F.3d 9 (2d Cir.1995) (emphasis added)).
In the case before the court, according to the findings of fact determined by the hearing officer, approved by the Board of Education, and affirmed by the Superior
*666
Court, McCormick’s acts of sending the electronic mail messages were listed among other acts of insubordination against the DPI. These findings entailing the concerns of plaintiffs former employer implicate many of the factors listed above, including (1) impaired discipline, (4) impeded speaker performance, and (5) interference with regular operations.
On the other hand, analyzing the communications as between the plaintiff and the defendants’ supervision — since the plaintiff and defendants worked in different state agencies and plaintiffs comments were addressed to defendants’ state agency employer — there is little threat to the government’s interest in efficiency or effectiveness. The parties in the instant case did not work together and did not have a working relationship so trust and harmony among co-workers and interference with regular operations are not implicated by McCormick’s comments to DNREC upper management. Therefore, plaintiffs interest in freedom of speech and the community’s interest in plaintiff having and exercising that freedom outweighs the government interest in the efficiency of its operation. To the extent that her comments concerned matters of land use and possible discriminatory practices, DNREC’s operational effectiveness potentially could be enhanced by plaintiffs comments. Therefore, the balance is tipped toward protecting McCormick’s speech in this matter.
Consequently, the court finds that plaintiffs interest in having free expression on a matter of public concern outweighs any threatened impairment to the State government’s interest in the efficient and effective provision of services. Therefore, plaintiffs speech is worthy of constitutional protection, as a matter of law.
3. Substantial or Motivating Factor
The next issue before the court is whether the record shows a material issue of fact as to whether McCormick’s complaint was a substantial or motivating factor in the DPI’s decision not to renew plaintiffs employment contract. The Supreme Court explained this requirement as follows:
The constitutional principle at stake is sufficiently vindicated if such an employee is placed in no worse a position than if he had not engaged in the conduct. A borderline or marginal candidate should not have the employment question resolved against him because of constitutionally protected conduct. But that same candidate ought not to be able, by engaging in such conduct, to prevent his employer from assessing his performance record and reaching a decision not to rehire on the basis of that record, simply because the protected conduct makes the employer more certain of the correctness of its decision.
Mt. Healthy City Sch. Dist. of Educ.,
429 U.S. at 285-86 , 97 S.Ct. 568 .
Though this court is precluded from reconsidering the Superior Court’s judgment that sufficient evidence was produced to find that McCormick was discharged as a result of her own misconduct, plaintiff in the instant case has adduced sufficient evidence to allege that her discharge was the goal of the defendants in retaliation for plaintiffs exercise of her First Amendment right of free speech. Indeed, the Superior Court opinion states that prior to the loss of her DPI contract, plaintiffs qualifications for her position as well as her job performance were not an issue. In addition, plaintiff had held her position with the DPI for eight years. Nevertheless, under certain circumstances, even a “borderline or marginal” employee would have the right to engage in constitutionally protected conduct without it impacting his or her performance evaluation. Yet, according the record, plaintiff was neither a “borderline or marginal” employee.
Furthermore, plaintiff has alleged a chronological chain of events starting with her communication regarding perceived gender discrimination by Jefferson and
*667
ending with the decision not to renew her employment contract. The reasons set forth in the notice from the Board regarding its recommendation that plaintiffs contract not be renewed and the hearing officer’s findings of fact both have been shown to mirror information communicated by the defendants to plaintiffs supervisor.
Therefore, the court finds that plaintiff has adduced sufficient evidence to raise a genuine issue of material fact as to whether McCormick’s complaint against Jefferson was a motivating factor in the decision not to renew her employment contract. Consequently, plaintiff has satisfied this second requirement for establishing a First Amendment retaliation claim.
4. Government Retaliation
Third, “defendants may defeat plaintiffs claim by demonstrating by a preponderance of the evidence that the same action would have been taken even in the absence of the protected conduct.”
Watters,
55 F.3d at 896 (citing
Mt. Healthy City Sch. Dist. of Educ.,
429 U.S. at 287 , 97 S.Ct. 568 ). The issue before this court, at summary judgment, is whether sufficient evidence has been adduced to raise a genuine issue of material fact as to whether McCormick would have been discharged for other reasons in the absence of her complaint regarding defendant Jefferson’s alleged gender discrimination so that the question of the actual reason for McCormick’s termination may go to a jury.
Id.
In the instant case, defendants point to the results of plaintiffs contract renewal hearing to argue that McCormick’s contract was not renewed because of her own insubordination. On the other hand, plaintiff alleges that the conduct of the defendants in response to her complaint of gender discrimination caused her termination. Consequently, “[w]hether the speech was a substantial factor in the retaliatory action and whether [McCormick] would have been fired anyway remain issues in contention between the parties.”
Id.
at 892 (citing
Johnson v. Lincoln Univ.,
776 F.2d 443 , 454 (3d Cir.1985);
Zamboni v. Stamler,
847 F.2d 73 , 79 n. 6, 80 (3d Cir.)).
The court finds that, based on the current record, a reasonable jury could find that plaintiffs contract would have been renewed if she had not complained to DNREC upper management about gender discrimination by defendant Jefferson.
Azzaro,
110 F.3d at 981 . Accordingly, regarding plaintiffs First Amendment retaliation claim, summary judgment in favor of the defendants is denied.
E. Fourteenth Amendment: Equal Protection Gender Discrimination Claim
The plaintiff asserts that the alleged acts of the defendants were performed under color of state law and were motivated by her gender, constituting discrimination on the basis of sex. At oral argument, plaintiff stated that the factual basis for this claim starts with Jefferson’s statement to McCormick that he would rather speak to a man. Plaintiff interprets this statement as meaning that Jefferson did not want to speak with or deal with a woman. Plaintiff filed a complaint with the Office of Civil Rights that recounts her encounter with the defendants. Plaintiff asserts that defendants McDaniel and Hill were aware of McCormick’s charge of gender discrimination against Jefferson. She also asserts that defendants ignored her complaint.
It has been held “that the equal protection clause contains a ‘federal constitutional right to be free from gender discrimination’ that does not ‘serve important governmental objectives’ and is not ‘substantially related to those objectives.’ ”
Bohen v. City of East Chicago,
799 F.2d 1180, 1185 (7th Cir.1986) (quoting
Davis v. Passman,
442 U.S. 228, 234-35 , 99 S.Ct. 2264 , 60 L.Ed.2d 846 (1979)). “To bring a successful claim under 42 U.S.C. § 1983 for a denial of equal protection, plaintiff! ] must prove the existence of purposeful discrimination.”
Andrews v. City of Philadelphia,
895 F.2d 1469, 1478 (3d Cir.1990) (citing
*668
Batson v. Kentucky,
476 U.S. 79, 93 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986)). Accordingly, McCormick “must demonstrate that [she] ‘received] different treatment from that received by other individuals similarly situated.’ ”
Id.
(quoting
Kuhar v. Greensburg-Salem Sch. Dist.,
616 F.2d 676 , 677 n. 1 (3d Cir.1980)). “Specifically to prove sexual discrimination, a plaintiff must show that any disparate treatment was based upon her gender.”
Id.
(citing
Bohen,
799 F.2d at 1186-87 ).
In her complaint, McCormick charges all of the defendants with gender discrimination in violation of the equal .protection clause. Nevertheless, “[s]upervisory liability cannot be based solely upon the doctrine of respondeat superior, but there must be some affirmative conduct by the supervisor that played a role in the discrimination.”
Andrews
895 F.2d at 1478 (citing
Rizzo v. Goode,
423 U.S. 362, 377 , 96 S.Ct. 598 , 46 L.Ed.2d 561 (1976)). Moreover, “[t]he necessary involvement can be shown in two ways, either ‘through allegations of personal direction or of actual knowledge and acquiescence,’ or through proof of direct discrimination by the supervisor.”
Id.
(quoting
Rode,
845 F.2d at 1207 ).
In the case of
Keenan v. City of Philadelphia,
983 F.2d 459, 464 (3d Cir.1992), the Court of Appeals for the Third Circuit addressed the issue of sufficiency of evidence to support an equal protection claim of gender discrimination in the context of reviewing the denial of a motion for judgment as a matter of law. Consequently, the standard of review in that matter entailed “drawing all reasonable inferences in favor of the verdict winner” and affirming the denial of the motion “unless the record [was] critically deficient of that minimum of evidence from which the jury might reasonably afford relief.”
Id.
at 464-65 .
Though the evidence presented in that case was deemed more than sufficient to satisfy the evidentiary minimum to establish an equal protection gender discrimination claim, it is indicative of the type of evidence necessary to establish such a claim. Therefore, in the instant case, though such a quantum of evidence is not required, a comparison with
Keenan
demonstrates McCormick’s failure to produce the
type
of evidence sufficient to establish a claim of gender discrimination. There the record included specific incidents that demonstrated that the defendant “treated [the female plaintiff] differently from other individuals similarly situated and did so based upon her gender.”
Id.
at 465 . For example, the female plaintiff in
Keenan
asserted that she was not given an overnight assignment, because she purportedly had a child at home. In fact, the plaintiff had no such child living with her. Nevertheless, her male counterparts who were given the overnight assignment did have minor children at home.
Id.
Here, it is clear that McCormick has not adduced sufficient evidence to make out a gender discrimination claim based on the equal protection clause. Plaintiff has not adduced evidence that defendants treated her differently based on her gender verses their treatment of others similarly situated. McCormick alleges that Jefferson expressed his preference to deal with a man verses plaintiff and that he only dealt with McCormick once she convinced Jefferson that he had no other choice. Though the necessity of such a demand is repugnant, plaintiff does not further allege that the manner in which Jefferson administered the citations against McCormick’s mobile home park was different from the way he handled similar situations. Here, the Court finds implicitly that McCormick has not established sufficient evidence to connect Jefferson’s alleged assault and detention of plaintiff with his expressed preference to deal with men.
Therefore, plaintiff has not brought forth evidence of the type required by applicable case law to establish a gender discrimination claim based on the equal protection clause. Accordingly, defen
*669
dants’ motion for summary judgment regarding plaintiffs gender discrimination claim is granted.
III. Claims Brought Pursuant to Sections 1985 and 1986: Equal Protection Claim
In the second count of her complaint, McCormick alleges that the defendants violated 42 U.S.C. §§ 1985 and 1986 “by conspiring to deprive [plaintiff] of her right to equal protection of the laws on the basis of her gender, and/or by neglecting and/or refusing to prevent said deprivation,” when the defendants conspired to have defendant Jefferson assault and detain McCormick and defendants Hill and McDaniel neglected to intervene. Further, plaintiff grounds her § 1985 claim upon the First Amendment, when she alleges that the defendants conspired against her to assault and detain her and to provide false and damaging information to plaintiffs employer in retaliation for her complaint to defendants’ upper management concerning Jefferson’s alleged gender bias.
12
A. Section 1985(3) Conspiracy Claim
To come within the legislation a complaint must allege that the defendants did (1) ‘conspire or go in disguise on the highway or on the premises of another’ (2) ‘for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.’ It must then assert that one or more of the conspirators (3) did, or caused to be done, ‘any act in furtherance of the object of (the) conspiracy,’ whereby another was (4a) ‘injured in his person or property’ or (4b) ‘deprived of having and exercising any right or privilege of a citizen of the United States.’
Griffin v. Breckenridge,
403 U.S. 88, 102-03 , 91 S.Ct. 1790 , 29 L.Ed.2d 338 (1971).
“The motivation aspect of § 1985(3) focuses not on scienter in relation to deprivation of rights but on invidiously discriminatory animus.”
Id.
at 102 n. 10, 91 S.Ct. 1790 .
The constitutional shoals that would lie in the path of interpreting § 1985(3) as a general federal tort law can be avoided by giving full effect to the congressional purpose — by-requiring, as an element of the cause of action, the kind of invidiously discriminatory motivation stressed by the sponsors of the limiting amendment. ... The language requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action. The conspiracy, in other words, must aim at a deprivation of the equal -enjoyment of rights secured by the law to all. •
Griffin,
403 U.S. at 102 , 91 S.Ct. 1790 .
The Supreme Court reiterated in
Bray v. Alexandria Women’s Health Clinic,
506 U.S. 263, 267-70 , 113 S.Ct. 753 , 122 L.Ed.2d 34 (1993), that “ ‘[d]iscriminatory purpose,’ ..., ‘implies more than intent as volition or intent as awareness of consequences. It implies that the decision maker ... selected or reaffirmed a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group.’ ” Id. at 271-72 , 113 S.Ct. 753 (quoting
Personnel Adm’r of Mass. v. Feeney,
442 U.S. 256, 279 , 99 S.Ct. 2282 , 60 L.Ed.2d 870 (1979)). “The same principle applies to the ‘class-based, invidiously discriminatory animus’ requirement of § 1985(3).”
Id.
In addition to this “animus” requirement, plaintiff must establish that she is a
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member of a class cognizable under § 1985(3). In
Pendrell v. Chatham College,
386 F.Supp. 341, 348 (W.D.Pa.1974), the court addressed whether § 1985 could support a cause of action for sex discrimination. The court reasoned that
[s]ince § 1985 equally draws its validity from the Fourteenth Amendment as well as the Thirteenth Amendment, and even though the Thirteenth Amendment is applicable only to discrimination against black persons and not to discrimination against women, [we] will hold that it will. In this instance the Thirteenth Amendment’s restrictiveness is overborne by the all-inclusive effect of the Equal Protection clause of the Fourteenth Amendment.
Id.
Similar reasoning was used by the Court of Appeals for the Third Circuit in the case of
Richardson v. Miller,
446 F.2d 1247 (3d Cir.1971), where a white male alleged that the “racial, or perhaps otherwise class-based invidiously discriminatory animus” required by
Griffin
was met when his employment was terminated due to his criticism of racially discriminatory employment practices against blacks. The court held that
[w]hile the question is very close, particularly because unlike
Griffin
the plaintiff is not a member of the class allegedly discriminated against, we have concluded that, in light of the trend in recent decisions to ‘accord (to the civil rights statutes) a sweep as broad as (their) language,’ and in light of the standard by which these allegations must be viewed when faced with a motion under Rule 12 of the Federal Rules of Civil Procedure, the question must here be answered in the affirmative.
Richardson,
446 F.2d at 1249 (quoting
Griffin,
403 U.S. at 97 , 91 S.Ct. 1790 ).
In a recent case, the Third Circuit followed this “flexible” approach to interpreting § 1985 as to its cognizable classes, again in a Rule 12(b)(6) context, when it held that the plaintiffs status as a mentally retarded person placed her within such a cognizable class.
Lake v. Arnold,
112 F.3d 682, 688 (3d Cir.1997). To support this holding the court cited its opinion in the case of
Novotny v. Great American Federal Savings and Loan Association,
584 F.2d 1235 (3d Cir.1978). The court noted that notwithstanding the fact that the holding of the case — that
Title VII
could be a source of rights protected by §
1985
— was vacated by the Supreme Court in
Great American Federal Savings and Loan Association v. Novotny,
442 U.S. 366 , 99 S.Ct. 2345 , 60 L.Ed.2d 957 (1979), the other holding in the case that women as a class are protected by § 1985(3) was still valid.
Lake,
112 F.3d at 686 n. 6. The court explained that “[i]n
Novotny,
[it] relied on Congress’ characterization of classifications based on gender as inherently invidious and upon the immutable nature of gender to conclude that women, as a class, were entitled to the protection of section 1985(3).... ”
Id.
at 687.
In applying these principles to the instant case, though the law of the Third Circuit allows for the recognition of women as a cognizable class in an appropriate § 1985(3) claim, the court finds that McCormick’s section 1985(3) claim must fail. The present record will not support a reasonable jury finding that defendants possessed the requisite invidiously discriminatory animus required to make out such a claim. As in
Bray ,
the current state of the record does not sufficiently demonstrate that defendants’ actions were “motivated by a purpose (malevolent or benign) directed specifically at women as a class....”
Bray,
506 U.S. at 267-70 , 113 S.Ct. 753 .
McCormick claims that her right to be free from gender discrimination was violated when defendants conspired to have defendant Jefferson assault and detain her. Plaintiff points to Jefferson’s statement to her that he preferred to speak with a man concerning the conditions at the trailer park, in order to allege Jefferson’s bias
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against plaintiffs gender. Therefore, the court interprets plaintiffs complaint as stating that Jefferson felt it was inappropriate for a woman to be involved in such matters or that defendant did not want to deal with women in such matters. Nevertheless, plaintiff admits that Jefferson proceeded to deal with plaintiff regarding the mobile home park, as a result of McCormick’s demand that he do so. Yet, in order to make out her § 1985(3) claim, plaintiff must produce sufficient evidence that Jefferson’s bias against women motivated the conspiracy to assault and detain her.
Griffin,
403 U.S. at 102 , 91 S.Ct. 1790 .
The court finds that McCormick has not produced the evidentiary basis for establishing that the requisite discriminatory intent motivated the conspiracy to assault and detain plaintiff. Though, arguably, plaintiff has adduced evidence that may demonstrate the existence of a personal dispute between plaintiff and defendants that implicates certain of her constitutional rights, this showing is not sufficient to survive summary judgment on a section 1985(3) claim.
This court must give full effect to the congressional purpose of requiring class-based, invidiously discriminatory animus behind defendants’ actions to avoid interpreting the section as a general federal tort law.
Griffin,
403 U.S. at 102 , 91 S.Ct. 1790 . Plaintiff has failed to provide sufficient evidence to raise a genuine issue of material fact that defendants actions were chosen “at least in part
because of,
not merely in spite of,” their adverse effect on women as a class.
See Bray,
506 U.S. at 271-72 , 113 S.Ct. 753 (emphasis added).
In addition, to establish a claim pursuant to section 1985(3), plaintiff must adequately assert that the purpose of defendants’ conspiracy was to deprive plaintiff of certain of her constitutional rights. As explained by the Supreme Court,
it does not suffice for application of § 1985(3) that a protected right be incidentally affected. A conspiracy is not ‘for the purpose’ of denying equal protection simply because it has an effect upon a protected right. The right must be ‘aimed at [...;]’ its impairment must be a conscious objective of the enterprise. Just as the ‘invidiously discriminatory animus’ requirement ... requires that the defendant have taken his action ‘at least in part because of, not merely in spite of, its adverse effects upon an identifiable group,’ so also the ‘intent to deprive of a right’ requirement demands that the defendant do more than merely be aware of a deprivation of right that he causes, and more than merely accept it; he must act at least in part for the very purpose of producing it.
Id.
at 275, 113 S.Ct. 753 (internal citations and quotation marks omitted:)
Consequently, not only has plaintiff failed to produce evidence that defendants conspired to assault and detain plaintiff “at least in part because of’ her gender, but she has not shown that defendants targeted her as a woman with the aim of depriving her of the type of right protected by section 1985(3). Again, the deprivation of the right must be the aim of the conspiracy — even a known incidental impact upon such right is not sufficient. Section 1985(3) applies to conspiracies “for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.” 42 U.S.C. § 1985 (3). McCormick has not specifically alleged nor has she sufficiently established that defendants acted with the aim of depriving plaintiff of a constitutional right within the scope of § 1985(3). Therefore, defendants’ motion for summary judgment regarding plaintiffs section 1985(3) claim is granted.
B. Section 1986 Claim
“[Section] 1986 constitutes an additional safeguard for those rights protected under 42 U.S.C. § 1985 , and ‘transgressions of § 1986 by definition depend on a
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preexisting violation of §
1985....'" Clark v. Clabaugh,
20 F.3d 1290, 1295 (3d Cir.1994) (quoting
Rogin v. Bensalem Twp.,
616 F.2d 680 , 696 (3d Cir.1980)). “[A] § 1986 plaintiff must show that: (1) the defendant had actual knowledge of a § 1985 conspiracy, (2) the defendant had the power to prevent or aid in preventing the commission of a § 1985 violation, (3) the defendant neglected or refused to prevent a § 1985 conspiracy, and (4) a wrongful act was committed.”
Id.
at 1295-96 (citing
Perez v. Cucci,
725 F.Supp. 209, 254 (D.N.J.1989) (citations omitted),
aff'd,
898 F.2d 142 (3d Cir.1990)).
Due to the derivative nature of a § 1986 claim, because the court has granted summary judgment in favor of defendants regarding plaintiffs § 1985(3) claim, defendants’ motion for summary judgment regarding plaintiffs § 1986 claim is granted.
IV. State Law Claims
A. Assault and Battery
Plaintiff contends that Jefferson, individually, and defendants, collectively, committed a variety of torts against her that are recognized by Delaware state law. First among them is the tort of assault and battery. According to McCormick, Jefferson committed this transgression when he grabbed her by the arm during the confrontation in the parking lot.
According to Delaware law, civil assault and battery is defined as follows: “[a]n assault is the attempt by a person, in a rude and revengeful manner, to do an injury to another person, coupled with the present ability to do it. A battery consists in the doing, in an angry, rude, and revengeful manner, of an injury to another person.”
St. Anthony’s Club v. Scottsdale Ins. Co.,
No. CIV.A. 97C-07-112JOH, 1998 WL 732947 , at *3 (Del.Super. July 15, 1998) (citing
Hendle v. Geiler,
50 A. 632 (Del.Super.1895)).
McCormick alleges that Jefferson injured her by grabbing her arm in a tight, wrenching grip, causing plaintiff to suffer “physical, mental, and emotional injury and severe mental anguish.” Further plaintiff alleges that Jefferson changed and tightened his grip on her arm each time she demanded him to stop. To substantiate this claim McCormick has submitted evidence in the form of a physician’s report from her treatment the next morning in the emergency room of a local hospital. Notes by the attending physician state that the formation of the contusions on plaintiffs arm was consistent with a right-handed grip.
This is sufficient evidence to establish the elements of a claim of assault and battery according to state law. Therefore, defendant Jefferson’s motion for summary judgment on this claim is denied.
B. False Imprisonment
Plaintiff next maintains that defendant Jefferson falsely imprisoned her when he forcibly directed her to a certain area in the parking lot. “The essence of a cause of action for false imprisonment, sometimes called false arrest, is unlawful detention.”
Pagano v. Hadley,
553 F.Supp. 171, 175 (D.Del.1982). “It protects the personal interest in freedom from restraint of movement.”
Id.
(citing Prosser,
Law of ToHs
§ 11, at 42 (1971);
Nesmith v. Alford,
318 F.2d 110, 118-19 (5th Cir.1963);
Chrisco v. Shafran,
525 F.Supp. 613, 616 (D.Del.1981)).
Citing the Restatement (Second) Torts §§ 35 and 36(3), Jefferson argues that plaintiff “was not confined in any way.” Moreover, defendant cites § 36(3) of the Restatement which states that “[t]he actor does not become liable for false imprisonment by intentionally preventing another from going in a particular direction in which he has a right to go.”
“An actor is liable for false imprisonment if: (a) he acts intending to confine the other or a third person within boundaries fixed by the actor, and (b) his act directly or indirectly results in such a con
*673
finement of the other, and (c) the other is conscious of the confinement or is harmed by it.”
Krochalis v. Insurance Co. of North America,
629 F.Supp. 1360, 1370 (E.D.Pa.1985) (citing
Gagliardi v. Lynn,
446 Pa. 144 , 285 A.2d 109 (1971) (quoting Restatement (Second) of Torts § 35)).
Moreover, “[t]he confinement within the boundaries fixed by the defendant must be complete; if there is a known, safe means of escape, involving only a slight inconvenience, there is no false imprisonment.”
Id.
(citing
Chicarelli v. Plymouth Garden Apartments,
551 F.Supp. 532, 541 (E.D.Pa.1982)). Section 36(3), entitled “What Constitutes Confinement,” establishes that the confinement must be “complete.” Therefore, even though a person is prevented from going in a particular direction, if he or she is able to go in another direction — making the confinement incomplete — that person cannot establish a cause of action for false imprisonment.
Plaintiff asserts that Jefferson falsely imprisoned her by wrongfully detaining her against her will. It is undisputed that Jefferson desired that McCormick proceed in specific direction, i.e., towards the public entrance. It is also undisputed that — though he would not allow plaintiff to proceed through the private entrance — she was allowed to proceed towards the public entrance. Therefore, the alleged confinement was not “complete.” Consequently, plaintiff has failed to establish a claim for false imprisonment. Thus, defendant Jefferson’s motion for summary judgment regarding this claim is granted.
C. Intentional or Reckless Infliction of Emotional Distress
Plaintiff claims that defendants’ actions in furtherance of their conspiracy to deprive her of her position with the DPI constituted the tort of intentional infliction of emotional distress. “A line of cases in Delaware has established the rule that the intentional infliction of emotional distress is an independent tort action which does not require an underlying impact or physical injury.”
Pritchett v. Delmarva Builders, Inc.,
No. 97C-03-011, 1998 WL 283376 , at *4 (Del.Super. Feb. 27, 1998): “These cases follow the view expressed in Restatement (Second) of Torts § 46(1) (1965) which sets out the elements of the action.”
Id.
“The tort of the intentional infliction of mental distress is defined in Restatement of Torts 2d § 46(1) as follows: One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.”
Avallone v. Wilmington Med. Ctr., Inc.,
553 F.Supp. 931, 938 (D.Del.1982) (citing
King v. Government Employees Ins. Co.,
C.A. No. 75-315 (D.Del.1978)).
“Liability only arises under the tort if the emotional distress inflicted is indeed severe.”
The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it. The intensity and the duration of the distress are factors to be considered in determining its severity. Severe distress must be proved; but in many cases the extreme and outrageous character of the defendant’s conduct-is in itself important evidence that the distress has existed....
Mattern v. Hudson,
532 A.2d 85, 86 (Del.Super.1987) (citing Restatement, § 46, comment j;
Ortiz v. Brandywine Chrysler-Plymouth, Inc.,
C.A. No. 674, 1977, at 4, 1985 WL 189010 (Del.Super. June 26, 1985)).
“[I]t is the court’s responsibility to determine whether the defendant’s conduct is so extreme and outrageous as to permit recovery.”
Id.
(citing
Brandywine Chrysler, supra,
at 2, 1985 WL 189010 ; Restatement, § 46, comment h)). “Of course, where reasonable men might differ, it is for the jury to determine whether the
*674
conduct has been sufficiently extreme and outrageous to result in liability.”
Id.
(citing
Brandywine Chrysler, supra,
at 2-4, 1985 WL 189010 ).) “On a motion for summary judgment, the moving party must demonstrate that even when the facts are taken in a light most favorable to the non-moving party, he is entitled to prevail as a matter of law.”
Id.
(citing
Matas v. Green,
171 A.2d 916 (Del.Super.1961)).
Using the Restatement Torts 2d § 46, Comment d [
13
], as a standard, the court in Avallone held that the defendant’s conduct was, “as a matter of law, insufficient to constitute conduct ‘so outrageous in character and so extreme in degree, as to be beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.’ ”
Avallone v. Wilmington Med. Ctr., Inc.,
553 F.Supp. 931, 938 (D.Del.1982) (quoting Restatement Torts 2d § 46, Comment d). In
Avallone ,
the plaintiff alleged that she was forced to resign from her job as a nurse, because she warned defendant’s personnel of the problems with implementing a new patient feeding method. In that case, the plaintiff asserted that, as a result of her warning, she received “a false negative job performance evaluation” and was forced to resign.
Id.
at 932 .
As in
Avallone ,
the issue before this court is whether McCormick has adduced sufficient evidence from which a reasonable jury could find that defendants actions were both extreme and outrageous, and that McCormick’s distress was both severe and reasonable under the circumstances. Matt
ern,
532 A.2d at 88 (citing Restatement, § 46, cmts. d and j;
Brandywine Chrysler, supra.).
Like the court in
Avallone ,
this court finds as a matter of law that defendants’ actions pertaining to plaintiffs employment contract do not meet the Restatement’s standard of extreme and outrageous behavior. In addition, regarding Jefferson’s actions in allegedly assaulting McCormick and all the defendants’ alleged participation in procuring the termination of plaintiffs employment contract, plaintiff has failed to produce any evidence that she experienced
any
severe emotional distress resulting from defendants’ conduct. Therefore, defendants’ motion for summary judgment on this claim is granted.
D. Negligent Infliction of Emotional Distress
The next tort plaintiff attributes to defendants is that of negligent infliction of emotional distress. This she contends was the result of Jefferson’s individual action in the parking lot and defendants’ conspiracy to assault and detain plaintiff and to terminate her employment contract.
“An essential element of [the tort of negligent infliction of mental distress] is that the victim not only suffer mental stress, but also bodily injury or sickness.”
Avallone v. Wilmington Med. Ctr., Inc.,
553 F.Supp. 931, 938 (D.Del.1982) (citing
Robb v. Pennsylvania R.R. Co.,
210 A.2d 709 (Del.1965);
Cosgrove v. Beymer,
244 F.Supp. 824 (D.Del.1965)). Defendants cite
Robb ,
which discussed “the right to recover for the physical consequences of fright in the absence of an impact and contemporaneous physical injury.” 210 A.2d at 711 . There the court held that “where negligence proximately caused fright, in one within the immediate area of physical danger from that negligence, which in turn produced physical
*675
consequences such as would be elements of damage if a bodily injury had been suffered, the injured party is entitled to recover. ...”
Id.
at 714-15 . This case is inapplicable to the instant case, as
Robb
pertains to fact situations where the plaintiffs are located in the “zone of danger.” Here, McCormick asserts that she was the direct target of defendants’ actions.
Nevertheless, McCormick and the defendants disagree on the question of whether plaintiff has adduced evidence of the type of injury necessary to make out a claim of negligent infliction of emotional distress. Delaware case law answers this question by stating that “[t]o support such a claim, the plaintiff must provide evidence of a present physical injury.”
Lupo v. Medical Ctr. of Delaware, Inc.,
No. Civ. A. 94C-09-049, 1996 WL 111132 , at *2 (Del.Super. Feb.7, 1996) (citing
Garrison v. Medical Ctr. of Delaware,
Inc., 581 A.2d 288, 293 (Del.1989);
McKnight v. Voshell,
No. 168, 1986 WL 17360 (Del. August 6, 1986) (Order);
Mergenthaler v. Asbestos Corp. of Am.,
480 A.2d 647, 651 (Del.1984);
Robb v. Pennsylvania R.R. Co.,
210 A.2d 709 (Del.1965);
Cooke v. Pizza Hut, Inc.,
C.A. No. 93C-03-029, 1994 WL 680051 (Del.Super. October 3, 1994) (memorandum opinion)). The court in
Lupo
explained that the
case [was] distinct from those emotional distress cases where an injury to a third person caused a plaintiff mental anguish or where a sudden, unexpected incident caused a plaintiff fright or shock. Rather, plaintiffs in this case allegedly suffered direct injuries due to the negligence of the defendants. Hence, emotional distress cases which deny recovery because the plaintiff was not in the ‘immediate zone of physical risk’ are not applicable. Instead the physical injury requirements in those cases where a defendant’s negligent acts directly caused the alleged injuries establish the standard.
Id.
(citing
Robb, supra; Cosgrove,
244 F.Supp. at 824 ).
The court in
Lupo
cited the Restatement (Second) of Torts, § 436A for this standard.
14
Using this standard the court held that “where the physical phenomena accompanying emotional disturbance are transitory and non-recurring they do not amount to the physical injury needed for recovery under a negligent infliction of emotional distress claim.”
Id.
In the case at, bar, McCormick asserts in her complaint that as a result of the negligent infliction of emotional distress allegedly resulting from defendants’ actions, she has suffered “physical and mental injury, emotional distress, and mental anguish, both temporary and permanent.”
To support this claim, McCormick has produced medical records documenting contusions to her arm, consistent with a wrenching grip to her arm, allegedly resulting from her confrontation with defendant Jefferson. This injury to McCor
*676
mick’s arm is not a “physical phenomena accompanying emotional disturbance.” Indeed, plaintiffs physical injury to her arm is the direct result of the alleged grip by defendant Jefferson. This injury did not result from an emotional disturbance resulting from McCormick’s encounter with Jefferson.
Furthermore, McCormick cites no evidence to support her claim of mental stress or physical injury resulting from defendants’ alleged actions pertaining to the non-renewal of plaintiffs employment contract. Therefore, defendants’ motion for summary judgment pertaining to plaintiffs claim of negligent infliction of emotional distress is granted.
E. Tortious Interference with Contract
Plaintiffs final contention is that defendants tortiously interfered with her contract with the DPI. The widely recognized tort of intentional interference with a contract entails the following elements: “[t]here must be (1) a contract, (2) about which defendant knew and (3) an intentional act that is a significant factor in causing the breach of such contract (4) without justification (5) which causes injury.”
Irwin & Leighton, Inc. v. W.M. Anderson Co.,
532 A.2d 983, 992 (Del.Ch.1987) (citing Restatement of Torts (Second) § 766 (1977);
Bowl-Mor Co., Inc. v. Brunswick Corp.,
297 A.2d 61, 64 (Del.Ch.1972);
Pennzoil Co. v. Getty Oil Co.,
C.A. No. 7425, slip op. at 42-43, 1984 WL 15664 (Del. Ch. February 6, 1984)).
Predominantly, to survive summary judgment, McCormick “must demonstrate that the [defendants] breached a valid and enforceable contract thereby causing [her] injury.”
Hursey Porter & Assoc. v. Bounds,
Civ.A. No. 93C-01-091, 1994 WL 762670 , at *13 (Del.Super. Dec. 2, 1994) (citing
Irwin & Leighton, Inc.,
532 A.2d at 992). In the instant case, there is no dispute as to the existence of McCormick’s contract with the DPI. There is a dispute between the parties as to whether defendants had any knowledge of plaintiffs employment contract. Nevertheless, at oral argument, it was conceded that defendants knew that McCormick was an employee of the DPI.
As for the next element of the cause of action, “[a] defendant acts intentionally by desiring his act to cause the breach or by being substantially certain that the act will result in a breach.”
Layfield v. Beebe Medical Ctr., Inc.,
No. Civ.A. 95C-12-007, 1997 WL 716900 , at *5 (Del.Super. July 18, 1997) (citing Restatement (Second) of Torts, § 8A, § 766, cmt. j (1977)). In viewing the evidence in a light most favorable to the non-moving party, plaintiff has established defendants’ intent to “reel in” McCormick — by allegedly seeking the termination of her employment contract with the DPI — through evidence including defendants’ comments and actions, as well as the timing of such actions.
As for the fourth element, “Delaware courts have applied the rule set forth in the Restatement (Second) of Torts § 767 (1979).”
Hursey,
1994 WL 762670 at *13 (citations omitted). “The term ‘improper,’ as used in § 767, has essentially the same meaning as ‘without justification’ or ‘without privilege.’ ”
Id.
at *14 (citing Restatement (Second) of Torts § 766 at 4-7 (1979) (introductory note § 766)). “Intentional torts involving a claimed violation of a right to prospective economic advantages inevitably involve a complex normative judgment relating to justification.”
Irwin,
532 A.2d at 992 . “The normative judgment whether pursuit of self-interest justified one in inducing another to breach a contract in the particular circumstances presented inevitably involves an evaluation of many factors. Section 767 of the Second Restatement of Torts identifies the following types of consideration relevant to such a judgment.”
Id.
“In determining whether an actor’s conduct in intentionally interfering with a contract or a prospective contractual relation of another is improper or not, consideration is given to the following fac
*677
tors [
15
]: (a) the nature of the actor’s conduct, (b) the actor’s motive, (c) the interests of the other with which the actor’s conduct interferes, (d) the interests sought to be advanced by the actor, (e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other, (f) the proximity or remoteness of the actor’s conduct to the interference and (g) the relations between the parties.”
Irwin,
532 A.2d at 993 .
In applying these fáctors to the instant case, factors (b), (d), and (f) are particularly relevant to the facts as alleged by McCormick and to the determination of whether or not the defendants’ acted improperly or -without justification. Regarding factor (b), plaintiff asserts that the defendants’ motive in taking the alleged actions was mere retaliation. Plaintiff asserts that defendants were motivated by a desire to interfere with her employment contract in retaliation for plaintiffs complaint against Jefferson for alleged gender discrimination. Therefore, plaintiff claims that defendants were not asserting legitimate self-interests in seeking the termination of her employment contract, and thus defendants’ actions were not justified, according to factor (d).
Lastly, as for factor (f), plaintiff has sufficiently established that defendants moved with dispatch to seek the termination" of plaintiffs employment contract. At this stage in the proceeding, at least, plaintiff has established that there was an immediate and direct chain of events initiated by the defendants that led to an immediate interference or termination of plaintiff’s employment contract. In addition, this contention establishes the fifth and final element in stating a claim of tortious interference with contract, i.e., injury-
Whereas plaintiff contends that defendants caused the termination of her employment contract, defendants point to the findings of fact, recommended by the hearing officer, accepted by the Board of Education, and affirmed by the Superior Court, tó allege that plaintiffs' contract was not renewed due to her own misconduct. Defendants argue that their actions in reporting waste of State resources was in fact laudable.
Laudable though these actions may have been, there is a factual dispute regarding
*678
defendants’ intent and regarding the causation of the lack of renewal of plaintiffs employment contract. Therefore, summary judgement on McCormick’s claim of tortious interference with her contract is precluded. Defendants’ motion for summary judgment regarding this claim is denied.
V. Qualified Immunity
16
A. Qualified Immunity: General Principles
Defendants argue that, to the extent that plaintiff has established a valid § 1983 claim, they are shielded from liability by the defense of qualified immunity. “In
Harlow v. Fitzgerald,
457 U.S. 800 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982), the Supreme Court held that ‘government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ”
Beckett v. Department of Corrections of the State of Delaware,
981 F.Supp. 319, 329 (D.Del.1997). “This standard developed from the Court’s general premise that government officials are entitled to some degree of immunity to avoid unacceptable interference with their duties and the hindrances possibly associated with threats of liability.”
Id.
(citing
Harlow,
457 U.S. at 806 , 102 S.Ct. 2727 ). “The Supreme Court considered discretionary functions those in which the surrounding judgments ‘almost inevitably are influenced by the decision maker’s experiences, values, and emotions.’ ”
Id.
(citing
Harlow,
457 U.S. at 816 , 102 S.Ct. 2727 ).
Nevertheless, there is a condition precedent to this legal determination which is explained in the case of
Wiers v. Barnes,
925 F.Supp. 1079, 1085 (D.Del.1996) (citations omitted), as follows:
[w]hether qualified immunity exists is a question of law to be determined by the [c]ourt. When the material facts are not in dispute, the district court may decide whether the government official is shielded by qualified immunity. However, notwithstanding the fact that the initial determination is one of law to be made by the court, a jury should decide the disputed factual issues relevant to that determination. The first part of this test is purely a question of law, but the latter part of the test requires application of the law to the particular conduct at issue, an inquiry which may require factual determinations if the nature of conduct is disputed.
The Court of Appeals for the Third Circuit in
Sharrar v. Felsing,
128 F.3d 810, 828 (3d Cir.1997) (citations omitted), provides further guidance to the court in performing its inquiry through its holding “that in deciding whether defendant officers are entitled to qualified immunity it is not only the evidence of ‘clearly established law’ that is for the court but also whether the actions of the officers were objectively reasonable. Only if the historical facts material to the latter issue are in dispute ... will there be an issue for the jury.” “This qualified immunity inquiry is an objective, fact-specific pursuit [in which] [djefendants bear the burden of establishing the affirmative defense.... ”
Karnes v. Skrutski,
62 F.3d 485, 491 (3d Cir.1995) (citing
Pritchett v. Alford,
973 F.2d 307, 312 (4th Cir.1992)).
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B. Qualified Immunity: Section 1983 Claims
1.] Fourth Amendment Claim
Because Jefferson is singly implicated regarding plaintiffs Fourth Amendment excessive force claim, only Jefferson asserts the defense of qualified immunity regarding this claim. Defendant Jefferson argues that he is entitled to qualified immunity regarding plaintiffs Fourth Amendment claim, because he did not violate any of plaintiffs well established constitutional rights. While not conceding the point, for summary judgment purposes, he further contends that if he grabbed plaintiff, “[a] reasonable officer could easily believe that taking plaintiff by the arm was reasonable under the circumstances.” In support of this position, defendant quotes plaintiffs testimony that “[t]here was a lot of activity; things were happening very quickly at that time.”
On the other hand, plaintiff asserts that Jefferson assaulted her outside the Bridgeville Police Station without justification or provocation and that no reasonable person in defendant’s position would have believed that he was not violating plaintiffs civil rights. Moreover, plaintiff asserts that defendant’s use of force in a manner resulting in physical injury against a “defenseless, unarmed citizen was manifestly unreasonable.”
In addition to those legal precepts outlined above, the Court of Appeals for the Third Circuit in
Karnes ,
17
provided specific guidance which is applicable to the type of case presently before the court. There the court stated that the first part of the qualified immunity analysis — whether the law was clearly established — is purely a question of law, but the second part— whether, given the state of the law, a reasonable officer could have believed his or her conduct was reasonable — entails the application of the law to the particular conduct at issue, which if disputed may require determinations of fact.
Karnes,
62 F.3d at 491-92 . The Third Circuit also noted that “[w]hile the qualified immunity defense is frequently determined by courts as a matter of law, a jury should decide disputed issues relevant to that determination.”
Id.
at 491 (citations omitted).
As for the first part of the test, the court disagrees with defendant Jefferson. Indeed, there can be no doubt that McCormick possessed a clearly established right to be free from unreasonable seizure and excessive force.
House,
824 F.Supp. at 490-91 . Moreover, at the time the facts of this case occurred, it was clearly established Third Circuit law that the objective reasonableness standard be applied to conduct allegedly violative of the Fourth Amendment.
Wiers,
925 F.Supp. at 1087 (citing
Karnes,
62 F.3d at 491 ).
The second part of the analysis requires that the court determine whether Jefferson’s actions were objectively reasonable. However, as indicated in the court’s earlier discussion, regarding plaintiffs Fourth Amendment claim, the record in this case establishes the existence of a clear dispute regarding historical facts material to a determination regarding Jefferson’s conduct in the parking lot. That is, there are two versions of what happened there — the plaintiffs on the one hand and the defendant’s on the other hand. Given this state of the record, the court is not prepared to say that defendant Jefferson’s conduct was objectively reasonable or that his conduct was objectively unreasonable.
In other words, for the reasons set forth earlier in this opinion during the discussion of plaintiffs Fourth Amendment excessive force claim, the court is, at this stage of these proceedings, unable to conclude that under the circumstances Jefferson should enjoy the protection of qualified
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immunity. On the other hand, even though summary judgment rules require that the “[c]ourt must view all facts and inferences in the light most favorable to the party opposing the motion [, here the plaintiff],”
Robinson,
987 F.Supp. at 283 (citation omitted), because there are material facts at issue, the court cannot conclude that the shield of qualified immunity should be removed from Jefferson. This is so because none of us will know as a matter of fact what transpired that September day, until a jury tells us.
Until a jury resolves the dispute regarding defendant’s conduct, the court cannot determine as a matter of law the reasonableness of the force, if any, used by Jefferson or his good faith belief, or the lack thereof, in the reasonableness of his conduct.
Karnes,
62 F.3d at 491-92 ;
House,
824 F.Supp. at 490 . Consequently, defendant Jefferson’s motion for summary judgment wherein he asserts his entitlement to be shielded by the defense of qualified immunity as to plaintiffs Fourth Amendment excessive force claim is denied.
2.] First Amendment Claim
Defendants assert that they are entitled to qualified immunity “for all claims regarding alleged false statements made to plaintiffs supervisor,” because the right to be “free from defamatory remarks in response to an exercise of First Amendment rights” was not clearly established as of the time the underlying events of this claim took place. On the other hand, plaintiff asserts that “[d]efendants, as State officials, used their influence with another State official who directly supervised [p]laintiff to secure the termination of [plaintiffs employment based on defamatory statements.” Moreover, plaintiff asserts that “[a]n obvious impetus for [defendants actions was [p]laintiff s complaint on September 10, 1996, to upper-level officials at DNREC about her treatment by Jefferson, who was Hill’s and McDaniel’s subordinate.” Consequently, the court must determine whether, at summary judgment, defendants are entitled to qualified immunity for using their influence to seek the termination of plaintiffs employment contract by providing defamatory statements to plaintiffs supervisor in response to plaintiffs complaint to defendants’ upper management regarding perceived gender discrimination by defendant Jefferson.
The first issue to be addressed is whether the right ahegedly violated by defendants was “clearly established” at the time the incident took place. “The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.”
Anderson v. Creighton,
483 U.S. 635, 640 , 107 S.Ct. 3034 , 97 L.Ed.2d 523 (1987). “Despite the factual correspondence usually necessary to clearly establish the contours of a right, the Supreme Court has stated that a ‘general constitutional rule already identified in the decisional law' may give fair warning to an official if the rule ‘applies with obvious clarity to the specific conduct in question,’ even though the specific issue has not previously been addressed.”
Rappa v. Hollins,
991 F.Supp. 367, 370-71 (D.Del.1997) (citing
United States v. Lanier,
520 U.S. 259 , 117 S.Ct. 1219 , 137 L.Ed.2d 432 (1997)).
“The Third Circuit ... has decided the law may be clearly established even if the court has not ruled on the issue and if there is some disagreement among the circuits, as long as ‘no gaping divide has emerged in the jurisprudence’ which would lead defendants ‘reasonably to expect’ the courts in this circuit to rule other than one way.”
Id.
at 370-71 (citation omitted). “This is especially true if Supreme Court cases and relevant district court cases strongly indicate the asserted right is constitutionally protected.”
Id.
(citations omitted).
In a First Amendment retaliation claim, “the qualified immunity issue revolves around whether the alleged act causing the [injury or] chill was clearly established as being unlawful” at the time of the incident.
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Rappa,
991 F.Supp. at 374 .
Rappa
states that “it is apparent that significantly adverse employment actions were clearly established as constituting retaliation if they were carried out in response to protected First Amendment activity.”
Id.
at 375 . Moreover, “the Supreme Court has most often found retaliation in cases in which the plaintiffs public employment has been denied in some way.”
Id.
(citations omitted).
The Third Circuit points to the Supreme Court case of
Pickering v. Board of Education,
as establishing that “it is essential that public employees be able to speak out freely on questions of public concern without fear of retaliatory dismissal.”
Pro v. Donatucci,
81 F.3d 1283, 1287 (3d Cir.1996) (citing
Watters v. City of Philadelphia,
55 F.3d 886 (3d Cir.1995 );
Pickering v. Board of Educ.,
391 U.S. 563 , 88 S.Ct. 1731 , 20 L.Ed.2d 811 (1968)). Furthermore, the Third Circuit acknowledges that “[i]n a line of cases beginning in the 1960’s, the [Supreme] Court developed the principle that the government ‘cannot condition public employment on a basis that infringes the employee’s constitutionally protected interest in freedom of expression.’ ”
Id.
(citing
Connick v. Myers,
461 U.S. 138, 142 , 103 S.Ct. 1684 , 75 L.Ed.2d 708 (1983)).
Therefore, this court finds that, in the present case, plaintiffs right to be free of retaliation for the exercise of her First Amendment light of free speech was clearly established. Nevertheless, there are factual disputes between the parties regarding the establishment of the underlying retaliation claim that must be resolved before this court can rule on the issue of qualified immunity.
Rappa,
991 F.Supp. at 371 ;
Azzaro v. County of Allegheny,
110 F.3d 968, 981 (3d Cir.1997). These factual disputes entail whether McCormick’s complaint was a motivating factor in the decision not to renew her employment contract and whether McCormick would have been discharged for other reasons in the absence of her complaint. Accordingly, defendants’ motion for summary judgment is denied.
VI. Sovereign Immunity
Defendants argue that in their official capacities they are immune from plaintiffs state law claims pursuant to the doctrine of sovereign immunity according to the Eleventh Amendment in that “the State of Delaware has not consented to such a suit.”
Wiers,
925 F.Supp. at 1091 . In addition, defendants cite
Will v. Michigan Department of State Police,
491 U.S. 58, 71 , 109 S.Ct. 2304 , 105 L.Ed.2d 45 (1989), for the proposition that plaintiff cannot sustain a 42 U.S.C. § 1983 claim against defendants in their official capacities.
Nevertheless, in her “Answering Brief’ to defendants’ motion for summary judgment, plaintiff points out that she has brought these claims against the defendants in their individual capacities, and, thus, sovereign immunity is not applicable as a defense.
Id.
(citing
Sample v. Diecks,
885 F.2d 1099 (3d Cir.1989);
Winn v. Lynn,
941 F.2d 236 (3d Cir.1991)). Therefore, no further consideration of this defense is necessary.
VII. Statutory Immunity: Delaware Tort Claims Act
The defendants further argue that they are entitled to statutory immunity on McCormick’s state law claims pursuant to the Delaware Tort Claims Act, 10 Del.C. § 4001 et seq.
18
“The Delaware Tort
*682
Claims Act provides immunity for the State of Delaware and its officials and employees upon the fulfillment of three requirements.”
Wiers,
925 F.Supp. at 1091 . “[P]ublic officials are exempt from suit under section 4001 when performing official duties involving the exercise of discretion and when performed in good faith and without gross or wanton negligence.”
Smith v. New Castle County Vocational-Technical Sch. Dist.,
574 F.Supp. 813, 821 (D.Del.1983). “Section 4001 also places on the plaintiff the burden of proving the absence of one or more of the elements of immunity set forth in the section.”
Id.
at 820 .
Though defendants argue that they are entitled to summary judgment on McCormick’s state law claims by virtue of this Act, “[t]he three elements required to demonstrate statutory immunity do not readily lend themselves to resolution by summary judgment.”
Wiers,
925 F.Supp. at 1092 . “[F]actor two requires an inquiry into the subjective intent of the public officers.”
Id.
Therefore, McCormick “has the burden to demonstrate the absence of good faith and of a belief that the public interest would be served by the officers’ conduct.”
Id.
(citing 10 Del.C. § 4001(2)).
Indeed, the court finds that McCormick has provided sufficient evidence which might allow the trier of fact to infer bad faith on the part of the defendants, including sworn testimony, medical evidence, circumstantial evidence pertaining to the timing and sequence of events, and direct evidence of comments by certain defendants. Therefore, the court finds that there are genuine issues of material fact for trial.
Id.
Accordingly, regarding McCormick’s state law claims, defendants motion for summary judgment based on the ground of statutory immunity is denied.
VIII. Absolute Witness Immunity
Defendants assert that they are entitled to absolute immunity regarding all “testimony defendants made at [plaintiffs] contract hearing.” In support of this claim, defendants contend that the contract “hearing was conducted pursuant to 14
Del.C.
§ 121(4) with full trial rights and McCormick was represented by present counsel.” At oral argument, plaintiff conceded that she may not seek liability of these defendants for their testimony at the hearing. Consequently, defendants motion for summary judgment based on the ground of absolute witness immunity is granted.
IX. Collateral Estoppel and Res Judicata
A. Collateral Estoppel and Res Judicata: General Principles
Defendants argue that all of plaintiffs claims relating to her employment are precluded by the doctrine of res judicata. Thus, defendants assert that plaintiffs claims under §§ 1983, 1985 and 1986, and state law, entailing claims of tortious interference with contract and negligent and intentional infliction of emotional distress, relating to plaintiffs former employment, should be precluded from any further adjudication. Moreover, defendants assert that to the extent plaintiffs claims are based on issues of fact that have been fully litigated through the contract renewal
*683
hearing process and the state court appeal, these issues are barred from reconsideration by the doctrine of collateral estoppel.
As stated above, plaintiff appealed the results of her contract renewal hearing to the Superior Court in the matter of
McCormick v. Board of Education for the State of Delaware,
C.A. No. 97A-10-003, 1998 WL 960782 (Del.Super. July 22, 1998). The Superior Court opinion (1) addressed the issue of “whether a notice is effective if it is not served within the mandatory time limits set by 14
Del.C.
§ 121(4)[,]”
Id.
at 4, 1998 WL 960732 ; (2) held that the Board had violated the contractual provisions of the agreement by failure to adhere to the time limits causing prejudice to plaintiff,
Id.
at 7 , 1998 WL 960732 ; (3) contained facts that McCormick had been employed under a series of contracts, had performed her job well, and her qualifications were never at issue,
Id.
at 2 , 1998 WL 960732 ; and (4) included findings regarding “several additional errors” asserted by McCormick,
Id.
at 8-13 , 1998 WL 960732 . These allegations of additional errors were that “the Board failed to include its findings of fact in the September 18, 1997 Order; the Board accepted contradictory, biased testimony; the Board declined to admit evidence critical to [McCormick’s] case; she was subject to disparate treatment and the Board’s findings were not supported by substantial evidence.”
Id.
at 8 , 1998 WL 960732 .
In its role as a reviewing court, the Superior Court’s “sole function [was] to determine whether the Board’s decision [was] supported by substantial evidence and free from legal error.” The Superior Court held that “[substantial evidence existed] to support a finding that the Department had ‘just cause’ to terminate McCormick because she violated the rules set out by it.”
19
Id.
at 12 , 1998 WL 960732 . Finally, the Superior Court found that “the evidence fully justifies the hearing officer’s refusal to find that McCormick was subject to disparate treatment.”
Id.
at 13 , 1998 WL 960732 .
Turning to the role of this court, “[a] federal court applying preclusion principles is bound by the Full Faith and Credit statute, 28 U.S.C. § 1738
20
, and must give a prior state judgment the same effect as would the adjudicating state. The same results follow in section 1983 suits brought in federal courts.”
Gregory v. Chehi,
843 F.2d 111, 116 (3d Cir.1988) (citations omitted);
Kelley v. TYK Refractories Co.,
860 F.2d 1188, 1192-93 (3d Cir.1988)
(citing Allen v. McCurry,
449 U.S. 90, 101 , 101 S.Ct. 411 , 66 L.Ed.2d 308 (1980)). “Decisions of state administrative agencies that have been reviewed by state courts are also given preclusive effect in federal courts.”
Edmundson v. Borough of Kennett Square,
4 F.3d 186, 189 (3d Cir.1993) (citing
Kremer v. Chemical Constr. Corp.,
456 U.S. 461, 479-85 , 102 S.Ct. 1883 , 72 L.Ed.2d 262 (1982)).
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B. Delaware Law: Collateral Estoppel
According to Delaware law, “[ujnder the doctrine of collateral estoppel, if a court has decided an issue of fact necessary to its judgment, that decision precludes relitigation of the issue in a suit on a different cause of action involving a party to the first case.”
Messick v. Star Enterprise,
655 A.2d 1209, 1211 (Del.1995) (citing
Allen v. McCurry,
449 U.S. 90, 94 , 101 S.Ct. 411 , 66 L.Ed.2d 308 (1980)). “Collateral estoppel extends not only to issues decided by courts, but also to issues decided by administrative agencies acting in a judicial capacity where the parties had an opportunity to litigate.”
Id.
(citations omitted).
Although the requirements for collateral estoppel[,] the preclusion of specific issues or facts[,] vary somewhat from those for res judicata, the courts require that the party against whom collateral estoppel is sought have an adequate opportunity to litigate its claims. The Supreme Court has defined this requirement as ‘a fair opportunity procedurally, substantively and evidentially to pursue his claim the first time’.
PIC Inc. v. The Prescon Corp.,
485 F.Supp. 1302, 1308 (D.Del.1980) (quoting
Blonder-Tongue Laboratories v. University of Illinois Found.,
402 U.S. 313, 333 , 91 S.Ct. 1434 , 28 L.Ed.2d 788 (1971)).
Unlike res judicata the second litigation need not be the same cause of action as the first in order for collateral estoppel to result. The issue sought to be concluded must be th

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2289722. Public record. Not legal advice.